Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Elmira regarding student discipline.

Decision No. 15,337

(December 21, 2005)

James S. Sharak, Esq., attorney for petitioner

Sayles & Evans, attorneys for respondent, James F. Young, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the City School District of the City of Elmira ("respondent") to suspend her son. The appeal must be dismissed.

On April 1, 2004, petitioner's son, then a tenth-grade student at respondent's alternative high school, was involved in an altercation with another student. He was sent to the principal's office where he was informed that he would be suspended for four days.

While waiting for petitioner to arrive, the student overheard that the other student involved in the fight was given a one-day suspension. Despite instructions from the principal to stay in the office, the student angrily left the office stating, in effect, that he was going to attack the other student. In an altercation that followed, the principal, at least one teacher, a school social worker and police officers attempted to restrain the student. The principal suspended the student for five days.

A disciplinary hearing before a hearing officer was held on April 20, 2004. The district's committee on special education ("CSE") convened that same day and determined that the student's conduct was not a manifestation of his learning disability. It also determined that the student's placement at the alternative high school was not appropriate. The hearing officer recommended that the student be suspended for the remainder of the school year and for the entire 2004-2005 school year. By letter dated April 27, 2004, the superintendent imposed the recommended discipline. Respondent affirmed the superintendent's decision and this appeal ensued. Petitioner's request for interim relief was denied on October 4, 2004.

Petitioner contends that the hearing officer failed to bifurcate the hearing into a guilt phase and penalty phase, and that the CSE should have noted in its assessment that the student had not taken his "temper medication" on that day. Petitioner further asserts that an incident from the student's anecdotal record was improperly introduced at the hearing without prior notice to petitioner. Petitioner contends that the length of the suspension was excessive. Petitioner also contends that the alternative education provided during the suspension is inadequate to enable her son to advance toward achieving his IEP goals in violation of �201.10(d) of the Commissioner's regulations. Petitioner requests that her son's suspension be reduced or his record expunged and that an appropriate special education program be created for him.

Respondent denies petitioner's allegations and asserts that proper procedures were followed. Respondent states that the student is classified as learning disabled, that his individualized education program ("IEP") does not refer to medication and, therefore, the issue did not need to be considered as part of the manifestation determination. Respondent argues that the suspension is not excessive given the violent nature of the student's conduct and that the student received adequate tutoring.

I must initially address a procedural matter. Petitioner's memorandum of law contains a new exhibit and raises new assertions that were not part of her original pleadings. A memorandum of law should consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540). Therefore, I have not considered the new assertions and exhibit submitted with petitioner's memorandum of law.

The appeal must be dismissed for lack of jurisdiction to the extent that petitioner challenges the manifestation determination or the educational services provided pursuant to �201.10(d) of the Commissioner's regulations. The proper avenue of redress for these claims is an impartial hearing (see Education Law �4404(1), 8 NYCRR �200.5; Appeal of a Student with a Disability, 41 Ed Dept Rep 165, Decision No. 14,649; Appeal of a Student with a Disability, 39 id. 354, Decision No. 14,257.)

The appeal is also moot to the extent that petitioner requests that the suspension be reduced. The Commissioner will only decide 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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). Since petitioner's son has served the suspension, the requested relief cannot be granted and the issue of penalty is moot.

The decision to suspend a student from school pursuant to Education Law �3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107). 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, and only if notice of its contents has been given in advance to the student (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of a Student Suspected of Having a Disability, 41 id. 253, Decision No. 14,678; Appeal of Ezard, 29 id. 135, Decision No. 12,245).

Here, while the hearing officer did not use the word "guilty," the hearing transcript shows that he indicated with sufficient clarity that he found the student guilty of the conduct charged prior to adjourning for the manifestation hearing. The hearing officer found the student's actions to be "clearly suspendable conduct," that the student had gone "way over the line," and that he was "wrong" for fighting, for leaving the office and for being insubordinate. Upon readjourning the hearing, the hearing officer addressed the manifestation determination findings and proceeded to the student's anecdotal record. Under these circumstances, I do not find that the hearing officer failed to bifurcate the hearing.

I also find competent and substantial evidence that petitioner's son participated in the objectionable conduct. The student was found guilty of conduct "that was disorderly, insubordinate, violent and endangering to the safety, morals, health and welfare of others" by his actions of fighting with another student, threatening to attack that student, ignoring the principal's directive that he stop and return to the office, kicking an administrator and a teacher, and attempting to physically bypass them to again assault another student. Although petitioner disputes some of the details of the incident, it is undisputed that the student was intent on physically harming another student, that he punched another student several times, disregarded instructions from administrators and staff to stop his violent behavior, placed his foot on a teacher's chest and either kicked or pushed her with his foot, tore a lanyard with keys from the principal's neck and caused injury to others. On this record, there is no basis for me to order the student's record expunged.

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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