Decision No. 13,723

(December 31, 1996)

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Syracuse ("respondent") regarding the discipline of her son ("X"). The appeal must be sustained in part.

X, age 15, was identified under '504 of the Rehabilitation Act of 1973 with "attention deficit hyperactivity disorder" ("ADHD"). On November 7, 1995, during a meeting with petitioner and the high school principal, X allegedly threatened a teacher. X then allegedly left the office and refused to follow the principal's directive to return.

As a result of this incident, the principal suspended X for five days and scheduled a superintendent's hearing to consider further discipline. On November 14, 1995, respondent's '504 Committee met and determined that there was no nexus between X's disability and his alleged misconduct. The same day, respondent held a disciplinary hearing pursuant to Education Law '3214 and found X guilty of threatening a teacher and failing to follow a reasonable directive. In the dispositional phase of the hearing, the hearing officer reviewed X's record of prior suspensions and teachers' weekly reports regarding his attendance, behavior, and grades, and recommended X's transfer from Nottingham High School to the William R. Beard School. On November 15, 1995, the '504 Committee affirmed that the change in placement was appropriate and modified X's accommodation plan. The findings of guilt and the transfer were affirmed on appeal to both the superintendent and board of education. This appeal ensued.

Petitioner claims that the transfer constitutes a change in placement, that the new placement was not in the least restrictive environment, and that X's actions did not warrant the excessive punishment imposed. Petitioner seeks findings that respondent violated X's rights by changing his placement without an evaluation as to the least restrictive environment, that respondent violated Education Law '3214 by transferring X, that respondent violated X's rights by considering disability-related behavior in assessing the penalty, and that respondent was arbitrary and capricious in finding X guilty. Petitioner requests an order that this incident be removed from X's disciplinary records, an offer to return X to Nottingham High School, and an order requiring respondent to amend its policies.

Respondent contends that petitioner fails to state a claim, that the Commissioner has no subject matter jurisdiction over alleged '504 claims, that the finding of guilt was based on substantial and competent evidence, that the penalty was not excessive, that X could be disciplined like any other student because no nexus was found between his misconduct and his disability, and that petitioner's claims are moot because the suspension is completed and X has since been enrolled in another high school.

Respondent argues that the appeal should be dismissed as moot. Indeed, the Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of the Bd. of Educ., East Ramapo Central School Dist., 35 Ed Dept Rep 542). However, where, as here, the disciplinary action remains on the student's record, and petitioner requests that it be expunged, a live controversy remains and the appeal will not be dismissed as moot (Appeal of Wilson, 28 Ed Dept Rep 254).

Whenever a student has a known disability or handicapping condition or school officials should reasonably suspect that the student has a disability, the Education Law '3214 hearing process must be separated into several parts. First, the student's guilt on the charges must be established. If guilt is found, the Committee on Special Education ("CSE") or '504 committee, as appropriate, must determine whether the conduct underlying the charges is related to a disability or handicapping condition (Appeal of a Student with a Disability, 35 Ed Dept Rep 22; Appeal of a Student with a Disability, 34 id. 556). If a nexus is found, no discipline may be imposed. Rather, a referral must then be made to the CSE or '504 committee for evaluation in the case of a student with a suspected disability, or, if the student is already classified under the Individuals with Disabilities Education Act ("IDEA") or eligible under '504, for possible program modification (Honig v. Doe, 484 U.S. 305; Appeal of a Student with a Disability, 34 Ed Dept Rep 556). If no nexus is found, yet a disability is indicated or has been identified, discipline may be imposed, but certain procedural rights must be provided (Appeal of a Student with a Disability, 35 Ed Dept Rep 22). Specifically, parents must receive notice and a due process hearing, if requested (S-1 v. Turlington, 635 F.2d 342). Also, if classified under the IDEA, the student is entitled to remain in the current placement during the pendency of the hearing (Honig v. Doe, 484 U.S. 305).

Therefore, it was appropriate for respondent to hold a '3214 hearing, which found X guilty of the charges, and to make a nexus determination, which found that X's misconduct was not related to his disability. Also, upon these findings, respondent appropriately convened its '504 committee to determine the appropriateness of his placement and to change X's accommodation plan. To the extent that petitioner asserts claims under '504 of the Rehabilitation Act, including complaints about the findings of the nexus hearing and the appropriateness of the change in placement, petitioner requested an impartial hearing to be held in accordance with procedures adopted by the school district, as required by 29 USC '794 and 34 CFR Part 104.

As to the finding of guilt, respondent's principal testified that when petitioner asked him to keep a certain teacher from interacting with her son, X said "I got something for her" and "You've been warned if she gets in my face, I'll take care of her." Respondent alleges that X left the office and refused to return, despite the principal's request. Petitioner and X deny that he made the threatening remark, and contend that he disobeyed the principal at his mother's request. I accept the hearing officer's findings of fact based on the witnesses testimony. With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of the hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of McCreery, 34 Ed Dept Rep 426; Appeal of the Bd. of Educ., Greater Johnstown City School District, 30 id. 89). Based on the record before me, I find no reason to substitute my judgment for the hearing officer's factual findings. Therefore, I do not find respondent's finding of guilt to be arbitrary, capricious or an abuse of discretion.

Petitioner also claims that the penalty was excessive and that imposing a transfer as a penalty for disciplinary purposes violates the Education Law. First, I must determine whether the penalty was a "transfer" or a "suspension." Respondent uses the terms interchangeably throughout its documents and seems to equate a transfer to a suspension accompanied by alternative education. However, while a suspension with alternative education is allowable as a disciplinary penalty, a transfer is not (Education Law '3214; Appeal of a Student with a Disability; 34 Ed Dept Rep 556). Based on the record before me, I conclude that the penalty imposed was a transfer. First, the hearing officer characterized the penalty as a "transfer," as did the superintendent. The board's January 17, 1996 letter to petitioner affirming the superintendent's decision was the first indication that the transfer was temporary and, in essence, a suspension and alternative placement. Moreover, to determine whether a suspension is excessive, there must be a time period associated with it which can be evaluated. The affidavit from respondent's '504 compliance officer indicates that assignment to the Beard School is never on a permanent basis and that the student can return after one marking period if no further problems occur. In fact, X was at Beard approximately ten weeks. However, there was no indication of the length of the suspension or transfer at the time the penalty was imposed or affirmed. Therefore, I conclude that the penalty imposed was a transfer. As Commissioner Sobol previously indicated to respondent in Appeal of a Student with a Disability, a transfer is not an authorized penalty in student discipline cases (34 Ed Dept Rep 556). Based on the foregoing, I am nullifying the penalty and order its removal from X's disciplinary record.

Even if, arguendo, the penalty imposed were intended to be a ten-week suspension, with alternative education provided at a different site, I would have to conclude that the penalty was improperly based on behavior for which no nexus determination was made. The record indicates that the hearing officer reviewed X's record of prior suspensions and teachers' weekly reports regarding his attendance, behavior, and grades, before making his recommendation. While it is appropriate to consider a student's anecdotal record in imposing a disciplinary penalty, it is not appropriate to impose a suspension based on a student's attendance and grades. Furthermore, when a student is identified as having a disability, only those records of the student's behavior which have been found not to have a nexus with the student's disability may be considered (Appeal of a Student Suspected of Having a Disability, 35 Ed Dept Rep 492). Since for short-term suspensions there is no determination as to whether a student's behavior was disability-related, it is inappropriate to consider such incidents, as well as teacher reports of behavior, in assessing an appropriate penalty. Although in her affidavit, the president of respondent board of education indicates that the board did not consider X's grades, concentration level or task completion in making its determination, she did state in her January 16, 1996 letter to petitioner that the threat, along with X's "prior numerous suspensions during the first two months of the 1995-96 school year," justify his suspension from Nottingham, thereby improperly considering the prior suspensions in affirming the penalty.

In light of the disposition of this appeal, it is not necessary for me to consider the parties' remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge all references to any suspension or transfer to the Beard School as a result of this incident from X's disciplinary records.

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