Decision No. 14,277

(December 21, 1999)

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of New York ("respondent") to uphold the suspension of her son on charges of possession of a weapon. The appeal must be dismissed.

Petitioner's son is classified as learning disabled, and was enrolled in a modified instructional services (MIS-I) program at CIS 166. On March 11, 1997, the executive director of respondent's Division of Student-Support Services suspended the student, charging him with possession of a weapon. A suspension hearing was scheduled for March 18 and adjourned to March 26, 1997 at the request of the parent's representative. At the hearing, witnesses testified that petitioner's son had pulled a knife from his pocket and stabbed his notebook in class, and refused the teacher's request to relinquish the knife. The teacher called a school safety officer, who searched the student's locker and found a knife in the pocket of a garment removed from the locker. Although petitioner requested that 14 school officials be subpoenaed to testify at the hearing, 8 of the requested individuals were not subpoenaed, and of the 6 that were subpoenaed, only 2 appeared at the hearing.

In a decision dated April 2, 1997, the executive director upheld the charge of possession of a Category I weapon and ordered that petitioner's son be transferred to a MIS-I program at JHS 82. The executive director ordered the principal to seal the records of the suspension, and to expunge the records upon the boy's completion of junior high school, provided that there were no additional incidents of misbehavior that resulted in a suspension. Petitioner appealed the executive director's decision to the Chancellor, and filed a request for interim relief that was denied on April 28, 1997.

Concurrently, petitioner requested an impartial hearing under Education Law "4404(1) and the Individuals with Disabilities Education Act ("IDEA"). Petitioner appeared before an impartial hearing officer ("IHO") on April 14, 1997, challenging the unilateral transfer of her son from the MIS-I class at CIS 166 to a MIS-I class at JHS 82, and asserting that the school had withheld her son's special education records and his cumulative record. The IHO directed the school to provide petitioner with the records she had requested, but declined to order that petitioner's son be returned to his previous MIS-I class, on the ground that pendency attached to the educational program, not the site of the program (Education Law "4404[4]). The impartial hearing was then adjourned to May 12, 1997.

When the hearing resumed, petitioner asserted that the school had not provided the records as ordered. The IHO took additional steps to have the records provided to petitioner by May 21, 1997. The IHO further held that the individualized educational program ("IEP") prepared by the school's committee on special education ("CSE") was a nullity, but petitioner disagreed with the IHO's proposal to direct the school to pay for her son's placement at a private school. The IHO concluded that the MIS-I placement was inappropriate because the student was failing to make academic progress, and ordered respondent to provide home instruction as an interim measure.

The IHO issued a decision on July 29, 1997, which determined that the CSE had failed to demonstrate the appropriateness of the student's educational placement and directed the school to issue a P-1 letter authorizing petitioner to place her son in a private school at respondent's expense for the 1997-98 school year. He also ordered that the student receive an independent evaluation no later than August 15, 1997, and that the CSE recommend an appropriate placement for him no later than September 15, 1997.

Petitioner appealed this decision to the State Review Officer (SRO) pursuant to Education Law "4404(2), challenging the way the IHO had conducted the hearing, as well as the IHO's determination that he lacked jurisdiction to determine certain issues which petitioner had raised at the hearing. The SRO dismissed the appeal in a decision dated October 15, 1997 (SRO Decision No. 97-62), and sustained the determination that the MIS-I placement was not appropriate and the CSE should recommend an appropriate educational program based upon an independent evaluation of the student. The SRO also found that the IHO had properly declined to entertain petitioner's complaints about the validity of one or more suspensions of her son from school and petitioner's alleged violations of the Family Education Rights and Privacy Act (FERPA), as they were outside the focus of an impartial hearing (Education Law "4404).

In the concurrent disciplinary appeal, by decision dated July 8, 1997, the Chancellor sustained the executive director's determination. The Chancellor found that there was insufficient evidence to determine whether the student had received class work and homework during the period of suspension, but directed school officials to ensure that suspended students are provided with all class work and homework assignments that are assigned during a period of suspension. The Chancellor declined to rule on petitioner's assertion that the school had denied her son a pendency placement, noting that this was already the subject of an order by the IHO. As to petitioner's claim that the school had suspended her son for more than the 10 days permitted for suspension of a special education student without a hearing, the Chancellor found that the school had met its burden by providing an alternative junior high school placement to petitioner before expiration of the 10 days, although petitioner had disagreed with this setting. The Chancellor further denied petitioner's contentions that the evidence had not supported the charge, and that the hearing officer had not followed proper procedures regarding subpoenaed witnesses, had rushed petitioner's cross examination of witnesses, and had improperly admitted hearsay evidence.

Petitioner appealed the Chancellor's decision to respondent, which dismissed the appeal in a decision dated September 10, 1997. Respondent found several procedural violations concerning witnesses - the hearing officer did not properly address petitioner's complaint regarding the failure to subpoena witnesses; the hearing officer should have advised petitioner that the hearing could be adjourned to obtain the absent witnesses; the requested witnesses should have been subpoenaed and then given an opportunity to argue that their testimony would be immaterial and irrelevant; and school officials should have provided the names of the school safety officers involved in the incident so petitioner could subpoena them. Respondent further determined that the school had violated the 10 day maximum exclusion rule because, although an alternative site was offered within 10 days, another school official had interfered with the proposed interim placement so it was not made available. However, respondent determined that there was sufficient evidence to support the charge and the violations were not so egregious as to warrant overturning the suspension. This appeal ensued.

Petitioner also requested in April 1998 to reopen the impartial hearing, because the CSE had recommended that her son's placement be changed from an MIS-I environment to a specialized instructional environment IV. On May 27, 1998, petitioner's representative appeared before a second IHO to discuss petitioner's requests for disclosure of the boy's entire school record and subpoenas for witnesses. This IHO attempted to ascertain what records had not previously been disclosed to petitioner, and issued an interim order on July 1, 1998 that directed the school to produce all documents that had been used to evaluate the student for each IEP prepared by the CSE, including all academic records. She also limited subpoenas to witnesses who had participated in the boy's most recent evaluation and preparation of his most recent IEP.

The student had not received any instructional services for the 1997-98 school year, despite the fact that he was entitled to receive home instruction as a pendency placement. In her July 1, 1998 interim order, the IHO recognized that the boy should have been receiving home instruction as his pendency placement and ordered the CSE to convene immediately to develop a service plan, which was to include compensatory services for the time that the boy had not received services. The IHO also noted that the student could have received appropriate services at an approved private school if petitioner had availed herself of the opportunity to use the P-1 letter she had received as a result of the previous impartial hearing, and that both parties were responsible for the denial of an appropriate education for the child during the 1997-98 school year.

Neither party appeared for a scheduled hearing on July 17, 1998. The IHO consequently dismissed the case without prejudice on August 14, 1998, with the proviso that the school must in any event comply with the directives in her July 1 interim order. Petitioner again appealed to the SRO, and requested that the SRO annul the interim order and direct that the CSE appoint an independent consultant who does not live in New York City to evaluate her son. The SRO dismissed the appeal on September 23, 1998 as premature, because the interim order was not appealable (SRO Decision No. 98-46).

In the instant Education Law "310 appeal, petitioner challenges respondent's September 10, 1997 decision to sustain the suspension, on evidentiary and procedural grounds. Petitioner also appeals respondent's "refusing to process" two other purported three day suspensions by the supervisor of special education in November 1996 and a principal in April 1997; respondent's refusal to provide a complete copy of the CSE and building files on her son to petitioner; and respondent's refusal to process her complaints that school officials had failed to meet with petitioner to discuss her son's academic standing, had falsified parts of his records, had allowed police officers to enter two schools her son had previously attended and compelled him to answer their questions, and that a pedagogical employee had used corporal punishment on her son. Petitioner claims that by these acts, respondent has retarded her son's learning disability, violated his rights to due process and rights under IDEA, FERPA, Education Law Article 89, Part 200 of the Commissioner's Regulations, and sections A-445 and A-820 of the Chancellor's Regulations. She requests that the suspension decisions be set aside, and that respondent be adjudged as having violated her son's rights.

Respondent denies that the suspension hearing was flawed or that the evidence does not support the determination. Respondent contends that this appeal is moot because the student has now graduated from junior high school and all records of this suspension were expunged from his school record in accordance with the executive director's order of April 2, 1997. Respondent further asserts that the Commissioner lacks jurisdiction to consider alleged FERPA violations; that petitioner's claims other than the suspension hearing should be dismissed because they are supported only by conclusory allegations and not by established facts; that the complaint regarding failure to address a complaint of corporal punishment must be dismissed due to petitioner's lack of cooperation; that allegations concerning suspensions other than the March 11, 1997 suspension must be dismissed for lack of evidence; and that the claims regarding the boy's academic standing during the fall of 1997 must be dismissed because they were addressed in the impartial hearing.

Insofar as petitioner appeals the March 11, 1997 suspension, this claim is now moot. The suspension has already been served, and petitioner has not disputed that all records of the suspension were expunged in accordance with the executive director's April 2, 1997 order once the student graduated from junior high school. It is well settled that the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of June D., 38 Ed Dept Rep 596, Decision No. 14,101; Appeal of Schuler, 37 id. 512, Decision No. 13,915).

Respondent also correctly asserts that the Commissioner lacks jurisdiction to consider petitioner's FERPA claims. The United States Secretary of Education, and not the Commissioner of Education, has jurisdiction over alleged violations of FERPA (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Schuler, supra).

The petition is unclear as to whether certain challenges are related to the suspension hearing and appeals, or the impartial hearings and appeals. To the extent that petitioner purports to appeal respondent's failure to consider two other suspensions which occurred in November 1996 and April 1997, or the school's permitting police officers to question her son on school premises, petitioner fails to state clear and concise facts to support her appeal. In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Robert D. and Barbara D., 38 Ed Dept Rep 18, Decision No. 13,975). Petitioner has not met this burden. As to the matter of alleged previous suspensions, the executive director's April 2, 1997 decision specifically stated that the principal had not previously suspended the student, and respondent noted in its September 10, 1997 decision that petitioner had provided no evidence in her appeal regarding any prior suspensions. The record also does not indicate any particularized information in the hearing record regarding the allegations regarding police questioning or the claim's relevance to the suspension hearing being appealed. Petitioner similarly provides no information in this appeal to support the claims. Given the lack of evidence before respondent on these claims, I certainly cannot conclude that respondent was arbitrary and capricious in its rejection of petitioner's claim of prior suspensions or its failure to address the issue of prior police involvement in its decision.

Petitioner complains that respondent improperly failed to address her complaints regarding the school's failure to provide her with copies of her son's records, but this claim appears to have arisen in the context of the "4404 impartial hearings and were the subject of disclosure orders by the IHO's (the record indicates that petitioner received copies of all school records that were entered into evidence at the suspension hearing, and, in any event, issues regarding the conduct of the suspension hearing are moot). The Commissioner of Education does not have jurisdiction to review a decision by an IHO or the SRO (Education Law "4404). Similarly, issues relating to her son's academic standing, placement and educational program were properly addressed in the "4404 impartial hearings, and it was appropriate for respondent to decline to address such issues in the context of petitioner's appeal of her son's March 1997 suspension.

Petitioner contested the accuracy of the student's school records at the suspension hearing, but there is nothing in the record to indicate that petitioner has availed herself of the specific appeal procedure in section A-280 of the Chancellor's Regulations for challenging information in a student's record. In view of the particular circumstances of this appeal, I will not entertain this claim.

Petitioner also included a claim regarding an alleged failure to investigate a complaint of corporal punishment in her appeal of the March 1997 suspension. The Chancellor, in his July 8, 1997 decision, ordered the superintendent to conduct an investigation of this allegation and report her findings to the Chancellor no later than September 19, 1997. Petitioner subsequently included this claim in her appeal to respondent. In its September 10, 1997 decision, respondent stated that the issue was outside the jurisdiction of the appeal and there was no record pertaining to the claim, but the Chancellor should ensure that school officials investigate the matter and take appropriate action. The record indicates that, on September 19, 1997, the community superintendent reported that school officials had attempted to contact petitioner and her representative about the corporal punishment claim, but to date neither had responded and there was no record of any allegation of corporal punishment in the school's records. The superintendent advised that the school was therefore unable to investigate the allegation.

Petitioner did not refute this assertion. Her apparent lack of cooperation with school officials, coupled with the complete lack of any proof in the record pertaining to the alleged corporal punishment, compels me to dismiss this claim due to petitioner's failure to establish facts showing a clear legal right to relief (Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120).

Although the appeal must be dismissed, I am compelled to comment on respondent's procedures in two respects. First, it is unclear from the record whether, in the April 2, 1997 disciplinary hearing decision, the executive director ordered the student's transfer to another school as an alternative placement during a period of suspension, or the transfer was imposed as a disciplinary penalty. While a suspension with alternative education is allowable as a disciplinary penalty, a transfer is not (Education Law "3214[3][c]; Appeal of A Student with a Disability, 36 Ed Dept Rep 273, Decision No. 13,723; Appeal of A Student with a Disability, 34 id. 556, Decision No. 13,408). Education Law "3214(5) governs involuntary transfers, and there is no indication in the record that the notice requirements outlined in "3214(5) were followed in this case.

Second, although the executive director's April 2, 1997 decision expressly notes that the student was classified as learning disabled, there is no indication in the record that the disciplinary matter was referred to the committee on special education ("CSE") for a nexus determination. 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 district must establish whether the student has committed the conduct charged. If such conduct is established, the 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 Suspected of Having a Disability, 38 Ed Dept Rep 52, Decision No. 13,980; Appeal of a Student with a Disability, 35 Ed Dept Rep 22, Decision No. 13,450; Appeal of a Student with a Disability, 34 id. 556, Decision No. 13,408). 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 IDEA or eligible under "504, for possible program modification (Honig v. Doe, 484 U.S. 305 [1988]; Appeal of a Student Suspected of Having a Disability, supra). 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 (id.). Respondent should review its procedures to ensure that students identified as or suspected of having a disability are provided with proper disciplinary procedures, and that transfer to another school is not imposed on any student as a disciplinary penalty.

THE APPEAL IS DISMISSED.

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