Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her guardian, from action of the Board of Education of the Center Moriches Union Free School District regarding student discipline.

 

Decision No. 14,722

(May 17, 2002)

 

Long Island Advocacy Center, attorneys for petitioner, Deborah Berger, Esq., of counsel

 

Dranitzke, Lechtrecker, Trabold & Johnson, attorneys for respondent, Harold G. Trabold, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals two suspensions of her granddaughter and requests that the Board of Education of the Center Moriches Union Free School District ("respondent") be directed to expunge the suspensions from the student"s record. The appeal must be dismissed.

Petitioner"s granddaughter was enrolled in the Center Moriches High School during the 2000-2001 school year. On December 1, 2000, the student was suspended from school for five days as a result of a November 30, 2000 incident in which she was accused of threatening a faculty member. The High School principal notified the student"s guardian of the suspension by letter dated December 1, 2000. According to petitioner, the letter was neither hand delivered nor sent by overnight delivery and was not received by the guardian within 24 hours of the student"s suspension.

On December 1, 2000, petitioner met with the principal concerning her granddaughter"s suspension. The parties present very different versions of that meeting. According to petitioner, the principal advised her that her granddaughter would be suspended for five days and also stated that he "did not believe" the student would be permitted to return to school at the end of the suspension period. She further alleges that the principal advised her to call his office at the end of the five-day period so that he could advise her whether her granddaughter would be permitted to return to school. Petitioner alleges that the principal did not advise her during the meeting that her granddaughter had a right to a superintendent"s hearing. The principal, on the other hand, asserts that he advised petitioner of the student"s right to a superintendent"s hearing and that petitioner waived that right and agreed to the placement of her granddaughter on home instruction.

Petitioner further asserts that her repeated phone calls to the principal after the short-term suspension expired went unanswered and that the principal did not meet with petitioner again until late January after her husband complained to respondent"s superintendent. During the January meeting, the two agreed to a number of conditions upon which the student would be allowed to return to school on January 29, 2001. Those conditions were memorialized in a January 26, 2001 letter from the principal to petitioner and included, among other things, counseling for petitioner"s granddaughter. The student returned to school on January 29, 2001.

Although it is not clear from the record, at some point during the school year petitioner"s granddaughter was referred to respondent"s Committee on Special Education ("CSE") for a comprehensive evaluation to determine whether she is a student with a disability.

On May 25, 2001 petitioner"s granddaughter was again suspended from school as a result of a May 24, 2001 incident in which she allegedly threatened other students with a knife. The notification letter, which was sent regular mail, return receipt requested, and was not received by the student"s guardian within 24 hours of the suspension, states that the student had been suspended for five days for "[m]enacing with a knife." The letter further stated that the student would be "home tutored for the remainder of the 2001 school year." Although the letter advised the guardian that she had a right to an informal hearing, it did not advise her of the student"s right to a superintendent"s hearing. Petitioner asserts that she was never advised orally of her granddaughter"s right to a superintendent"s hearing. Respondent asserts that the high school principal met with petitioner on May 25 and it was agreed that they would forego a superintendent"s hearing and that her granddaughter would receive home instruction for the remainder of the school year.

Petitioner"s granddaughter remained out of school for the remainder of the 2000-2001 school year. By letter dated June 22, 2001, petitioner"s counsel requested that respondent"s superintendent remove both suspensions from the student"s record on the grounds that the district failed to comply with her procedural due process rights set forth in Education Law "3214. By letter dated July 6, 2001, respondent"s superintendent acknowledged that, with respect to the May 25, 2001 suspension, the student should not have been placed on home instruction for the rest of the school year without a superintendent"s hearing. The superintendent agreed to remove "anything in the record indicating a suspension in excess of 5 days" with respect to both suspensions, but refused to expunge the two short-term suspensions on the grounds that, in both cases, petitioner was notified of her granddaughter"s right to an informal hearing. This appeal ensued.

Petitioner alleges that respondent violated her granddaughter"s procedural due process rights set forth in Education Law "3214 with respect to both short-term suspensions. Petitioner also alleges that her granddaughter"s second suspension occurred after she had been referred to respondent"s CSE and, therefore, the district should have provided her with the procedural protections required by the IDEA and Article 89 of the Education Law. For relief, petitioner requests that respondent be directed to remove all references to the two short-term suspensions from her granddaughter"s record.

Respondent asserts that the appeal is untimely. As to the merits, respondent asserts that in the case of both suspensions, the principal orally notified petitioner of the student"s right to a superintendent"s hearing, but that petitioner requested that no hearing be held.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused for good cause shown (8 NYCRR "275.16). Petitioner seeks expungement of her granddaughter"s disciplinary record pertaining to short-term suspensions imposed on December 1, 2000 and May 25, 2001. Petitioner, however, did not commence this appeal until July 19, 2001, well beyond the 30-day timeframe. Petitioner argues, nonetheless, that the appeal is timely because it was instituted within 30 days of respondent"s refusal to expunge the student"s record. Although petitioner frames her request for relief as a request for expungement, in essence, petitioner challenges the propriety of the underlying suspensions. Because this appeal was commenced more than 30 days from the challenged suspensions, it must be dismissed as untimely (Appeal of Catherine B., 37 Ed Dept Rep 34, Decision No. 13,797; Appeal of Miller, 35 id. 451, Decision No. 13,598).

 

Although, I am constrained to dismiss this appeal on procedural grounds, I am compelled to comment on respondent"s failure to comply with the student"s due process rights.

Education Law "3214(3)(b)(1) provides that, in the case of a suspension by a principal, not to exceed five days, the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal at which the pupil and/or person in parental relation shall be authorized to present the pupil"s version of the event and to ask questions of the complaining witnesses." Notice of the right to request an informal conference is required under 8 NYCRR "100.2(l)(4) which states, in pertinent part:

(4) Parental notice concerning student suspensions. When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be suspended from school. Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension" (Emphasis added).

Respondent did not substantially comply with the mandates of "100.2(l)(4). I have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (Appeal of Lloyd, 39 Ed Dept Rep 537, Decision No 14,303; Appeal of J.G., 39 id. 393, Decision No. 14,270; Appeal of Milano, 37 id. 472, Decision No. 13,908). Moreover, oral communication with parents regarding a suspension is not a substitute for the required written notification (Appeal of J.G., supra; Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Milano, supra).

Significantly, Education Law "3214(3)(b)(1) as revised by the Safe Schools Against Violence in Education Act(Chapter 181 of the Laws of 2000) and "100.2(l)(4) of the Commissioner"s regulations require written notice and an opportunity for an informal conference before a student"s suspension from school unless such student"s presence poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process. Under such circumstances, school districts must provide notice and an opportunity for an informal conference "as soon after the suspension as is reasonably practicable." Respondent does not argue that this exception applies to the short-term suspensions at issue here.

I must also comment on respondent"s failure to follow proper procedure with respect to the student"s long-term suspensions. Education Law "3214(3)(c) provides that no pupil may be suspended in excess of five days unless the pupil and person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil shall have the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil"s behalf. What constitutes "reasonable notice" will vary with the circumstances of each case (Bd. of Educ. of Monticello CSD v. Commissioner of Education, et al., 91 NY2d 133). When, as a result of misconduct, a student is removed from regular school attendance and receives alternative education at home, she has been "suspended" within the meaning of Education Law "3214, regardless of the terminology used by the district (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 52, Decision No. 13,980). Such removal or suspension in excess of five days must adhere to the procedures required by "3214(3)(c). It appears that respondent suspended petitioner"s daughter twice during the 2000-01 school year for a period in excess of five days without following these procedural mandates.

Although respondent claims that petitioner waived the student"s right to a superintendent"s hearing on both occasions, I have previously held that a district must provide the student and his or her parent or person in parental relation with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights, to effectuate a "3214(3)(c) waiver (Appeal of J.G., supra). It does not appear that respondent followed this procedure in the instant case. An oral presentation of such rights is insufficient because it is virtually impossible to assure or discern that the individual was fully and accurately advised of all of his rights and the consequences of waiving them, and nevertheless freely assented to the waiver (Id.). I also note that respondent acted improperly by conditioning the student"s return to school on her participation in counseling (Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689).

Finally, although it is unclear from the record when the student was referred to respondent"s CSE, it should be noted that in certain circumstances, a school district shall be deemed to have knowledge that a student had a disability prior to the time the behavior occurred thereby affording the student rights under the Individuals with Disabilities Education Act ("IDEA") (8 NYCRR "201.5). Further, if a student is referred to the CSE for an initial evaluation during the time the student is suspended, the CSE must conduct the evaluation in an expedited manner (8 NYCRR "201.6).

In sum, while I have dismissed this appeal, I remind respondent of its obligation to comply with Education Law "3214 and "100.2(l)(4) of the Commissioner"s regulations. Respondent should review and revise its disciplinary procedures to ensure compliance with the statute and regulation.

 

THE APPEAL IS DISMISSED.

END OF FILE

 

 

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