Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Valley Central School District regarding student discipline.

Decision No. 15,540

(February 27, 2007)

Linda A. Geraci, Esq., attorney for petitioners

Donoghue, Thomas, Auslander & Drohan LLP, attorneys for respondent, Daniel Petigrow and Judith Crelin Mayle, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Valley Central School District (“respondent”) to suspend their son from the Valley Central Middle School.  The appeal must be dismissed.

During the 2004-2005 school year, petitioners’ son was a student at respondent’s middle school.  On February 2, 2005, he was involved in a verbal altercation with another student and pushed a district employee.

By letter dated February 2, 2005, sent by regular mail, the school principal notified petitioners that effective February 3, 2005, their son would be suspended for five days.

Also by letter dated February 2, 2005, petitioners were notified that its committee on special education (“CSE”) would meet on February 7, 2005.  By letter dated February 16, 2005 the CSE determined that petitioners’ son’s behavior was not a manifestation or result of a disability.

On or about February 3, 2005, an administrative assistant called petitioners and informed them that a superintendent’s hearing would be held.  The parties disagree as to whether petitioners were informed of the time and place of the superintendent’s hearing.  However, by letter dated February 4, 2005, petitioners were notified that a superintendent’s hearing would be held on February 8, 2005 at 2:15 p.m.

By letter dated February 10, 2005 petitioners were informed that a superintendent’s hearing was held on February 8, 2005 and that the hearing was delayed more than 20 minutes to provide for their late arrival.  Since petitioners were not present a plea of not guilty was entered on their son’s behalf.  Testimony was taken under oath and the superintendent found petitioners’ son guilty of the charges and suspended him for the remainder of the 2004-2005 school year.

By letter dated February 25, 2005 petitioners appealed the superintendent’s decision to respondent.  On February 28, 2005, respondent met to consider the appeal and by letter dated March 2, 2005 notified petitioners of its decision to affirm the superintendent’s findings.  This appeal ensued.

Petitioners allege that the initial notice of five-day suspension was not delivered in accordance with Education Law §3214 and did not properly advise them of their right to question complaining witnesses prior to the suspension.  Petitioners also allege that they were not provided with reasonable notice of the date and time of the superintendent’s hearing nor were they provided with reasonable time to obtain counsel.  Petitioners further allege that the penalty was excessive.  Finally, petitioners contend that their son’s conduct was a manifestation of his disability.  Petitioners request that I overturn respondent’s determination and order the suspensions expunged from their son’s educational record.

Respondent alleges that the record of the five-day suspension has been expunged and that issue is therefore moot.  Respondent contends that the notice of the superintendent’s hearing was sufficient and timely. Respondent alleges that its decision was based on substantial and competent evidence and that the penalty was proper.  Finally, respondent maintains that I lack jurisdiction over petitioners’ claim that their son’s conduct was a manifestation of his disability.

Petitioners contend that the notice of the five-day suspension was not delivered in accordance with Education Law §3214 and did not properly advise them of their right to question complaining witnesses.  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 the five-day suspension has been expunged from the student’s record petitioners’ claims concerning the initial five-day suspension are dismissed as moot.

With respect to the long-term suspension, petitioners contend that they were not provided with reasonable notice of the date and time of the superintendent’s hearing as required by Education Law §3214(3)(c)(1).  Petitioners allege that they received a phone call from the administrative assistant on February 4, 2005, informing them that a hearing would be held but not informing them of the date and time of the hearing.  However, they also allege that on February 4, 2005 they discovered a letter in their daughter’s backpack specifying the date and time of the hearing.  They contend that receipt of the letter on the Friday preceding the Tuesday hearing was insufficient notice and did not provide them with sufficient time to retain counsel.  In contrast, the administrative assistant avers that on February 3, 2005 petitioners were verbally advised of the time and place of the hearing and the process to request an adjournment.  She also avers that written notice of the superintendent’s hearing was hand delivered to petitioners’ home by a district employee on February 4, 2005.

Education Law §3214(3)(c)(1) requires “reasonable notice” of a hearing.  What constitutes “reasonable notice” varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of a Student Suspected of Having a Disability 41 id. 253, Decision No. 14,678).  I have previously found three days notice of a hearing to be sufficient (Appeal of A.L., Jr., 42 Ed Dept Rep 368, Decision No. 14,883; Appeal of Harkola, 38 id. 769, Decision No. 14,139; Appeal of Lago, 38 id. 723, Decision No. 14,126).  Given that petitioners admit receiving notice of the hearing four days prior, and that there is no indication that they requested an adjournment, I find that the notice in this case was adequate.

Further, I do not find the penalty to be excessive.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).  The penalty, although severe, is not irrational or unreasonable and is within respondent’s discretion (seeAppeal of S.G. and J.G., 44 Ed Dept Rep 268, Decision No. 15,170; Appeal of M.K., 42 id. 405, Decision No. 14,894).

Finally, to the extent petitioners challenge the manifestation determination of the CSE, they may request an impartial hearing pursuant to Education Law §4404(1) and §§200.5(i) and (j), and 201.11(a)(3) of the Commissioner’s regulations.  If they are dissatisfied with the hearing officer’s decision, they may seek review by the State Review Officer pursuant to Education Law §4404(2).

THE APPEAL IS DISMISSED.

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