Appeal of A STUDENT WITH A DISABILITY, by his parents, from actions of the Board of Education of the Patchogue-Medford Union Free School District regarding student discipline.

 

Decision No. 15,406

 

(May 17, 2006)

 

T. Kevin Murtha & Associates, P.C., attorneys for respondent, Joseph E. Madsen, Esq., of counsel

 

MILLS, Commissioner.--Petitioners challenge actions of the Board of Education of the Patchogue-Medford Union Free School District ("respondent") regarding discipline imposed on their son.  The appeal must be sustained in part.

Petitioners challenge two suspensions imposed on their son in April and May 2004 when he was a fifth grade student attending respondent's Eagle Elementary School.  The first suspension concerned acts that their son allegedly committed on April 28 and 29, 2004.  By letter dated April 30, 2004, the school principal notified petitioners that their son was suspended for five days beginning May 3 through May 7, 2004 for "purposely exposing his bare backside to other students; leaving school property while school was in session; possession of a knife; brandishing a knife; threatening other students; and insubordination."  By letter dated May 24, 2004, petitioners appealed the suspension to the superintendent.  By letter dated May 27, 2004, the superintendent denied their appeal.

By letter dated May 20, 2004, the school principal notified petitioners that their son was suspended again for five days from Friday, May 21 through Wednesday, May 26, 2004 (although those dates comprise only four school days).  The reason for the suspension was that petitioners' son "was disorderly, insubordinate, or conducted himself in such a manner as to endanger the safety, morals, health and welfare of himself and others in that [he] refused to follow the directions of staff; behaved in a manner that endangered himself and others; used inappropriate language; left school building [sic] without authorization; made a threat toward a student; used the school's telephone without authorization; left the cafeteria without permission; [and] took another student's property without permission."  By letter dated May 20, 2004, after oral notification of the suspension, petitioners appealed the suspension to the superintendent, which was denied on May 27, 2004.

By letter dated May 21, 2004, respondent's superintendent reiterated the second set of charges and notified petitioners of a superintendent's hearing scheduled for Wednesday, May 26, 2004.  The letter also notified petitioners that since their son was a special education student, a nexus hearing was scheduled for the hour following the superintendent's hearing.  By letter dated May 24, 2004, petitioners requested a postponement of the superintendent's hearing.

By letter to respondent dated June 3, 2004, petitioners appealed both the five-day suspension from May 3 through 7 and the four-day suspension from May 21 through May 26.  By letter dated June 15, 2004, respondent denied the appeal of both suspensions.

The superintendent's hearing concerning the charges underlying the second suspension was held on June 17, 2004, at which the hearing officer determined that the district had met its burden of proof on five of the eight charges.  Upon rendering his determination, but prior to imposing any penalty, the hearing officer attempted to schedule a manifestation hearing to determine whether there was any relationship between petitioners' son's disability and the behavior that was the subject of the disciplinary action.  Petitioners declined to attend a manifestation determination scheduled for June 22 and one rescheduled for June 30.  There is no indication in the record whether a manifestation determination was held, whether any additional penalty was imposed or whether any such penalty was appealed to respondent.  This appeal ensued.

Regarding the first suspension from May 3 through May 7, petitioners deny that their son committed the alleged offenses.  Petitioners contend that there has been a pattern of discrimination and harassment against their son, especially by the elementary school principal, and that this treatment caused some of the charged behavior.  Petitioners assert that their son was denied the opportunity to telephone them and that the principal's secretary used unreasonable physical force to prevent him from doing so, leaving a bruise on his arm.  They also allege that school officials denied them the opportunity to review surveillance tapes, to meet with the principal and to question witnesses.  They allege that the district failed to present evidence that their son committed the acts for which he was suspended and failed to provide alternative education.

Regarding the second suspension from May 21 through May 26, petitioners deny that their son committed the underlying acts leading to the suspension and allege that a pattern of discrimination against their son caused some of the charged behaviors.  Petitioners assert that they did not receive written notice of the suspension from the principal until May 25, 2004, the third day of the suspension, although they admit that the district's director of pupil services notified them by telephone on May 20.  They contend that respondent endangered their son's welfare by permitting him to leave the building during a lock-in, denied them the opportunity to interview witnesses until the superintendent's hearing and failed to provide alternative education during the suspension.  They also allege that respondent improperly delayed the hearing for four weeks, that their rights were violated at the hearing and that the hearing officer failed to conduct himself in an appropriate manner and in accordance with the Education Law.

Petitioners also allege that respondent breached an agreement regarding the interaction of certain school employees with their son and never responded to their September 2003 request to investigate how the district conducts New York State English and Math performance exams.

Petitioners seek expungement of both suspensions.  They also request that I order an investigation of any person whose conduct is found to be illegal or inappropriate, and order the district to investigate how it conducts State tests.

Respondent asserts that the petition should be dismissed as untimely, for lack of verification, for failure to provide a clear and concise statement of a claim and for failure to state a claim upon which relief may be granted.  Respondent maintains that the suspensions were not arbitrary or capricious or contrary to law, and generally denies any wrongdoing by any school official or employee.  Regarding the May 20, 2004 suspension, respondent contends that petitioners lack standing because they are not aggrieved parties.  It also contends that an appeal regarding that suspension is premature because no manifestation hearing was held after the superintendent's determination on June 17.  Respondent contends further that to the extent petitioners request an investigation of or action against any persons named in the appeal, petitioners failed to properly join those persons.

I must first address several procedural matters.  Respondent asserts that the petition was not verified as required by �275.5 of the Commissioner's regulations.  However, the petition submitted to my Office of Counsel contained the requisite verification.  Although petitioners should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioners are not represented by counsel and my Office of Counsel received a verified petition (Appeal of Meringolo, 45 Ed Dept Rep 128, Decision No. 15,281; Appeal of M.M., 42 id. 323, Decision No. 14,870; Appeal of McSween, 42 id. 59, Decision No. 14,775).

Regarding timeliness, 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 any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  Respondent alleges that the petition is untimely because it was served on July 16, 2004, more than 30 days after it denied petitioners' appeal of the two suspensions by letter dated June 15, 2004.  However, petitioners attach evidence to their reply that they received respondent's letter on June 19, 2004.  Therefore, to the extent that petitioners' appeal concerns the suspensions, the petition is timely.  However, to the extent petitioners appeal other issues arising more than 30 days prior to service of the petition on July 16, 2004, those portions of the petition are dismissed as untimely.

Section 275.10 of the Commissioner's regulations requires that the petition contain a clear and concise statement of petitioners' claim showing that they are entitled to relief.  The petition in this case contains 18 paragraphs containing from 2 to 27 unnumbered sentences.  Although it is confusing and disjointed, a liberal interpretation of the rules is appropriate where petitioners are prose and there is no prejudice to respondent (Appeal of Metze, 42 Ed Dept Rep 40, Decision No. 14,768).  Respondent was able to decipher the petition sufficiently to respond to the claims.  Therefore, I decline to dismiss the appeal on this basis.

To the extent that petitioners request that I order an investigation, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).  Moreover, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Petitioners failed to join as necessary parties those persons whom they want investigated.  Therefore, the petition is dismissed to the extent petitioners seek action against any individuals.

Regarding the first suspension from May 3 through 7, 2004, Education Law �3214(3)(b)(l) 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."  By letter dated May 18, 2004, the district's director of pupil services, the district's designated person for contact with petitioners, denied petitioners' requests to see a class log of students who had left the classroom and might have seen their son allegedly in possession of the knife, and to interview the students who were with their son on the playground when the knife was found and who were subsequently interviewed by district officials.  Petitioners were not otherwise given the opportunity to question those complaining witnesses or those who allegedly saw their son bare his bottom.  Because petitioners were denied their right to question complaining witnesses, the suspension must therefore be annulled and expunged from petitioners' son's record (Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of a Student Suspected of Having a Disability, 44 id. 475, Decision No. 15,236; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418).  In light of this disposition, I need not address petitioners' remaining arguments concerning this suspension.

Except in certain circumstances, not applicable here, �100.2(l)(4) of the Commissioner's regulations requires school district officials to immediately notify parents in writing that the student may be suspended from school.  The written notice of a short-term suspension 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.  With respect to the second suspension, although petitioners received oral notification of the suspension on May 20, they did not receive written notice of the suspension until May 25, 2004, the third day of the suspension.  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of R.F., 43 id. 206, Decision No. 14,972).  Accordingly, the four-day suspension of petitioners' son from May 21 through May 26, 2004 must be annulled and expunged from petitioners' son's record (Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

Although a superintendent's hearing was held on June 17, 2004, there is no indication in the record that a manifestation hearing was held or that a final determination was made that imposed a penalty.  Accordingly, at the time of the commencement of this appeal, petitioners were not yet aggrieved beyond the two short-term suspensions and issues relating to that portion of the appeal must be dismissed as premature because the Commissioner will not render an advisory opinion on issues before they become justiciable (Appeal of Lombardo, 44 Ed Dept Rep 167, Decision No. 15,135; Appeal of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805; Appeal of Sheppard, 41 id. 150, Decision No. 14,643).

Furthermore, had a penalty been imposed, petitioners would have been required to exhaust their administrative remedies by appealing to the board of education prior to initiating an appeal to the Commissioner (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of D.C., 41 id. 190, Decision No. 14,661).  As noted above, there is no indication that an additional penalty was imposed or that petitioners appealed any such penalty to respondent.

In light of the above disposition, I need not address the parties' remaining contentions.  However, I am compelled to comment on some troubling matters raised in the record.  The record indicates that petitioners' son did not attend school from May 21, 2004 through the end of the 2003-2004 school year and received little alternative instruction then and during the first suspension from May 3 through May 7.  The record is unclear why petitioners' son was not in school and indicates that petitioners rejected some alternative instruction that was offered.  Nonetheless, respondent is reminded of its duty to comply with all aspects of the Education Law, including ��3214(3)(e) and (g) regarding alternative instruction and discipline of students with disabilities.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent's five-day suspension of petitioners' son from May 3 through May 7, 2004 be annulled and expunged from his record; and

 

IT IS FURTHER ORDERED that respondent's four-day suspension of petitioners' son from May 21 through May 26, 2004 be annulled and expunged from his record.

 

IT IS FURTHER ORDERED that to the extent petitioners' son's record contains any reference to any discipline imposed from May 27, 2004 to the end of 2003-2004 school year, all such references should be annulled and expunged.

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