Appeal of a STUDENT WITH A DISABILITY, by his parents, from actions of the Boards of Education of the Franklin Central School District and the Susquehanna Valley Central School District regarding student discipline.

Decision No. 16,002

(December 4, 2009)

Legal Services of Central New York, Inc., attorneys for petitioners, Deborah I. Bice, Esq., of counsel

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent Board of Education of the Franklin Central School District, Wendy K. DeWind, Esq., of counsel

Coughlin & Gerhart, LLP, attorneys for respondent Board of Education of the Susquehanna Valley Central School District, Carl A. Kieper, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the suspension of their son by the Board of Education of the Franklin Central School District and the Board of Education of the Susquehanna Valley Central School District (“respondents”).  The appeal must be sustained in part.

Petitioners’ son was an 11th grade student in the Franklin Central School District (“Franklin”) during the 2005-2006 school year. He was classified as a student with a disability under §504 of the Rehabilitation Act of 1973 (“§504”).  The student’s Behavioral Intervention Plan provided that, to eliminate frustration, he would be allowed to leave the classroom as needed, report to the Guidance Office, and return to class when able to do so.  It also provided that, if the student engaged in inappropriate behavior during class that “continues or is a distraction to the rest of the class,” he would be sent to the principal’s office and given a disciplinary referral. 

On March 14, 2006, the student received a disciplinary referral for being late to class, returning after the time reported on his late pass and making rude comments to the teacher.  The next day, he received a second referral after he disobeyed a teacher’s instruction, was permitted to leave class briefly to collect himself and failed to return.  The high school principal suspended him for five days and requested a superintendent’s hearing to consider a longer suspension.

The principal met with the student on the afternoon of March 15, 2006, discussed the suspension with him and gave him a written notice of suspension.  About 30 minutes later,  the student returned to the principal’s office with his mother.  The student yelled at the principal that he would not accept the suspension, cursed at her several times, threatened to sue her and leaned over her desk in what she felt was a threatening manner.  His mother attempted to cover his mouth at one point and later led him out of the office.

The district’s §504 team determined, at two separate meetings, that the student’s behavior on these occasions was not a manifestation of his disability.

By notice dated March 22, 2006, the interim superintendent charged petitioners’ son with misconduct, including disruptive behavior, lateness, insubordination, disrespect toward faculty, use of profanity and threatening behavior.  A hearing officer conducted a superintendent’s hearing on March 28, 2006.  In a report dated April 6, 2006, he determined that the student was guilty of the charged conduct.  He reviewed the student’s anecdotal record and recommended that the student’s suspension be continued for the remainder of the 2005-2006 school year and the first semester of the following school year.  By notice dated April 10, 2006, the interim superintendent advised petitioners that he accepted the hearing officer’s findings and recommendation and suspended the student until January 28, 2007.

Petitioners appealed the interim superintendent’s decision to the board of education, which affirmed the determination at its May 17, 2006 meeting.  In the meantime, the Committee on Special Education (“CSE”) met, classified the student as “other health impaired” and developed an Individualized Education Program (“IEP”) for him.  The CSE also found, again, that the behavior underlying the disciplinary proceedings was not a manifestation of the student’s disability.

On May 15, 2006, the student and his mother moved from Franklin to the Susquehanna Valley Central School District (“Susquehanna Valley”).  By letter dated June 5, 2006, Susquehanna Valley’s superintendent advised petitioners that the district would enroll the student but that he would be required to “complete the suspension” previously imposed by Franklin.  The superintendent also stated that during the suspension the district would provide alternative instruction which would be sufficient to address his IEP goals and objectives by providing a teacher to work with him two hours a day at home.  The superintendent further advised petitioners that she would schedule a CSE meeting to consider the student’s placement before the conclusion of the suspension.

This appeal ensued and petitioners’ request for interim relief was denied.  The student has since received his GED.

Petitioners assert that the penalty imposed on their son was disproportionate to the offenses he committed.  They also contend that Susquehanna Valley lacked authority to enforce the suspension imposed by Franklin.  They ask that I order both districts to expunge all references to the suspension from their son’s records and amend their policies regarding student discipline.

Respondents allege that the matter is moot, and maintain that the penalty was appropriate and that Susquehanna Valley acted within its statutory authority in enforcing the suspension.

It appears from the record that petitioners requested an impartial hearing to challenge the manifestation determination made by Franklin’s §504 team and reaffirmed by the CSE, but the record does not reveal the results of that proceeding.  To the extent petitioners seek a review of the CSE’s determination, their claims must be dismissed for lack of jurisdiction (seee.g.Appeal of a Student with a Disability, 35 Ed Dept Rep 534, Decision No. 13,623).

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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  The term of the student’s suspension has expired, thus, to the extent petitioners seek their son’s reinstatement, a reduction of the penalty, and an adjustment of Franklin’s records to reflect that reduction, the appeal must be dismissed as moot.  However, the appeal is not moot insofar as petitioners seek expungement of any reference to a suspension by Susquehanna Valley (seeAppeal of C.R., 45 Ed Dept Rep 303, Decision No. 15,330; Appeal of N.C., 42 id. 119, Decision No. 14,794; Appeal of K.M., 41 id. 318, Decision No. 14,699).

Petitioners contend that the suspension by Susquehanna Valley should be expunged from their son’s student record because the school district exceeded its authority by suspending their son without conducting a  superintendent’s hearing pursuant to Education Law §3214. 

Education Law §3214(3)(c)(1) provides, in pertinent part, that “[n]o pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such student shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf.”

In this case, the superintendent of Susquehanna Valley simply informed petitioners that their son would complete the suspension imposed by Franklin. No charges were prepared, no notice of hearing was given, and no hearing was conducted.

As noted above, Education Law §3214(3)(c)(1) prohibits the imposition of a long-term suspension without an opportunity for a fair hearing upon reasonable notice.  There is no provision in the statute for an automatic suspension based on conduct resulting in a suspension in another school district.  

To the contrary, the Education Law provides that each district must adopt its own locally developed code of conduct setting forth expectations for students’ behavior and outlining the appropriate range of disciplinary measures that may be imposed for violation of such code (Education Law §2801). Because codes of conduct vary from district to district, the determination of guilt and the appropriate penalty in one district will not necessarily be identical to another district.  Therefore, when a student who has been suspended in one district moves to another district, that district cannot simply enforce the prior suspension without determining whether the student’s conduct violates its code of conduct, thereby threatening the safety, health, morals or welfare of others in its schools, and then determining an appropriate penalty under its code.  While the doctrine of collateral estoppel, or issue preclusion, may be invoked to limit the scope of the hearing (seee.g. Wisniewski v. Board of Educ. of Weedsport Cent. School Dist., 2006 WL 1741023, aff’d 794 F3d 34; Livolsi v. Hicksville Union Free School Dist., 263 AD2d 447), the subsequent district may only suspend a student in accordance with its own code of conduct and in accordance with the procedures set forth in Education Law §3214(3).

Susquehanna Valley’s reliance upon Education Law §1709(3) and Appeal of Kendrick and Sillato, 32 Ed Dept Rep 464, Decision No. 12,887, as authority for enforcing the prior suspension is misplaced.  Education Law §1709(3) authorizes a board of education to regulate the admission of students and their transfer from one class or department to another, and does not authorize suspensions from instruction in contravention of Education Law §3214.  Appeal of Kendrick and Sillato is inapposite since it involved a student placement decision and not a suspension for disciplinary reasons.

Since Susquehanna Valley did not review the student’s conduct under its own code or afford the protections of §3214, I find that any reference to a suspension of petitioners’ son must be expunged from its records.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent Board of Education of the Susquehanna Valley Central School District expunge any reference to the suspension of petitioner’s son from his student record in accordance with the terms of this decision.

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