Appeal of D.F.B., on behalf of his son D.B., from action of the Board of Education of the East Islip Union Free School District regarding student discipline.

 

 

(June 18, 2004)

 

Salvatore E. Benisatto, P.C., attorney for petitioner

 

Ingerman Smith, L.L.P., attorneys for respondent, Deborah Richardson deCuevas, Esq., of counsel 

 

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the East Islip Union Free School District ("respondent") to affirm the suspension of his son, D.B.  The appeal must be sustained in part.

On March 13, 2003, respondent"s junior high school principal met with a seventh grade student and his mother and learned that earlier that day, D.B. had wrapped a string around the student"s neck and pulled it tightly, leaving red marks on his skin.  The following day, the principal met with D.B., who essentially admitted the incident.

Following the meeting with D.B., the principal informed D.B."s parents by telephone that he was suspending D.B. for five days commencing March 17, 2003.  That same day, the principal sent a letter by regular mail to D.B."s parents informing them that their son had been suspended for five days for choking another student and that they had a right to an informal conference.  Petitioner claims that he did not receive the letter until March 18, 2003.

By letter dated March 21, 2003, D.B."s mother requested that respondent"s Committee on Special Education ("CSE") evaluate her son to determine whether he had an educational disability.

On April 9 and May 16, 2003, respondent"s designee conducted a superintendent"s hearing based on the allegation that on March 13, 2003, D.B. made inappropriate physical contact with another student using a "string/rope type object."  At the conclusion of testimony, the hearing officer found sufficient evidence to sustain the charge.  After considering D.B."s anecdotal record, the hearing officer recommended D.B."s suspension for the remainder of the school year.

By letter dated May 21, 2003, respondent"s superintendent advised D.B."s parents that he was adopting the hearing officer"s recommendation.  By letter dated June 11, 2003, respondent"s president advised D.B."s parents that respondent had affirmed the superintendent"s determination.  This appeal ensued.

Petitioner claims that the principal failed to advise him of his statutory right to an informal conference before imposing the short-term suspension.  Petitioner further claims that the hearing officer was biased because he improperly permitted the district to introduce his son"s disciplinary record.  Petitioner also alleges that respondent did not provide his son with sufficient alternative education during the suspension period.  Finally, petitioner claims that the CSE did not timely complete its evaluation of D.B.  Petitioner requests that I expunge the suspension from his son"s records, order respondent to reimburse him for tutoring services and provide him with copies of the CSE records.

Respondent maintains that it properly suspended D.B. before notifying his parents of their right to an informal conference because D.B. posed an immediate threat of danger to other students.  Respondent asserts that the hearing officer properly considered D.B."s anecdotal record and did not exhibit bias.  Respondent acknowledges that there were some problems with D.B."s alternative education, but claims the principal promptly resolved them after they were brought to his attention.  Respondent contends that petitioner failed to exhaust administrative remedies with respect to his claim that the CSE evaluation of his son was untimely.

The Commissioner of Education lacks authority to award damages, or order reimbursement for the cost of private tutoring (see, Appeal of Wendy and Robert L., 39 Ed Dept Rep 224, Decision No. 14,222; Application of Coleman, 37 id. 391, Decision No. 13,887; Appeal of Totolis and Richard, 36 id. 476, Decision No. 13,779).  The appeal must therefore be dismissed to the extent that petitioner seeks reimbursement for tutoring services.

Petitioner claims that the principal failed to provide him with adequate notice.  When a principal proposes to suspend a student from attendance for a period of five days or less, "100.2(l)(4) of the Commissioner"s regulations requires that immediate written notice be provided to parents to advise them of the reason for the proposed suspension and their right to an immediate informal conference with the principal.  Written notice must 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.  The purpose of this regulation is to ensure that parents of a student suspended for five days or less are made aware of the statutory right provided in Education Law "3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his original decision to suspend was correct or should be modified (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 542, Decision No. 14,552; Appeal of a Student with a Disability, 38 "id. 378, Decision No. 14,059; Appeal of Milano, 37 id. 472, Decision No. 13,908).

Education Law "3214(3)(b)(1) and "100.2(l)(4) provide that written notice and an opportunity for a conference must take place prior to the suspension unless the student presents a continuing danger or ongoing threat of disruption, in which case, the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable.

Respondent"s contention -- that D.B."s presence at school posed a danger -- is belied by the fact that while the principal was informed of the incident on Thursday, March 13, 2003, D.B."s suspension did not commence until Monday, March 17, 2003.  Under these facts, I find that respondent has failed to establish sufficient grounds for dispensing with the pre-suspension notice and opportunity.

Although respondent"s principal notified D.B."s parents by telephone on March 14, 2003 of their son"s suspension, he failed to advise them of their right to an informal conference.  Moreover, oral notice alone is insufficient (Appeal of a Student with a Disability, 43 Ed Dept Rep ___, Decision No. 15,021).

Further, although respondent notified D.B."s parents by regular mail of petitioner"s right to an informal conference, this notice is inadequate.  The Commissioner has repeatedly held that sending the written notice by regular mail does not satisfy the regulation (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 390, Decision No. 14,722; Appeal of Lloyd, 39 id. 537, Decision No 14,303; Appeal of J.G., 39 id. 393, Decision No. 14,270).  Under these circumstances, I find that respondent did not provide petitioner with notice of his right to an informal hearing in accordance with the statute and regulation.  The short-term suspension must therefore be expunged.

I find no merit to petitioner"s claim that the hearing officer was biased with respect to D.B."s long-term suspension.  After D.B."s attorney challenged the accuracy of a computerized summary of D.B."s anecdotal record, the hearing officer ruled the document inadmissible, but permitted the district to introduce the underlying disciplinary records only after D.B."s counsel was given an opportunity to review them.  A student"s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 253, Decision No. 14,678; Appeal of Ezard, 29 id. 135, Decision No. 12,245); and only if notice of its contents has been given in advance to the student (Appeal of Ezard, supra; Matter of Kulik, 21 Ed Dept Rep 567, Decision No. 10,793).  Petitioner was given an opportunity to review his son"s disciplinary record before it was considered by the hearing officer.  Under these circumstances, I find nothing improper about the hearing officer"s ruling and find no evidence of bias.

Although the issue of the adequacy of D.B."s alternative education is moot because the suspension period has ended, alternative education must begin promptly after the suspension begins.  Education Law "3214(3)(e) provides that where a student has been suspended, "immediate steps" shall be taken for his or her attendance upon instruction. The term "immediate" does not mean instantaneously, but it does mean that a school district must act promptly (Appeal of Deborah F., 42 Ed Dept Rep 178, Decision No. 14,813; Appeal of Benkelman, 34 id. 250, Decision No. 13,299).  The alternative instruction provided must be substantially equivalent to that received by the student prior to the suspension (Appeal of Deborah F., supra; Appeal of Watts, 23 Ed Dept Rep 459, Decision No. 11,282), and equivalency will be determined on a case-by-case basis (Appeal of Camille S., 39 Ed Dept Rep 574, Decision No. 14,316).  Respondent is reminded of these requirements for future reference.

Although petitioner complains that respondent"s CSE did not timely complete its evaluation of D.B., the record reflects that the CSE found that D.B. does not have an educational disability.  Under these circumstances, I find that petitioner has failed to establish any harm resulting from the CSE"s allegedly untimely action, and indeed, petitioner does not seek any relief with respect to this claim.  An appeal pursuant to Education Law "310 is not the proper forum to address issues related to a CSE determination.  If petitioner is dissatisfied with the CSE"s determination, the proper avenue of redress is to request an impartial hearing (see, Education Law "4404(1); 8 NYCRR "200.5; Appeal of Student with a Disability, 40 Ed Dept Rep 170, Decision No. 14,451).

Finally, petitioner"s claim that the CSE has failed to provide petitioner with his son"s records should properly be addressed to the United States Secretary of Education under the Family Education Rights and Privacy Act.

 

THE APPEAL IS SUSTAINED IN PART.

 

IT IS ORDERED that respondent remove from D.B."s disciplinary record any reference to D.B."s short-term suspension.

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