Appeal of a STUDENT ALLEGED TO HAVE A DISABILITY, by his parent, from action of the Board of Education of the Sachem Central School District regarding student discipline.

Decision No. 16,034

(March 17, 2010)

Ingerman Smith L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sachem Central School District (“respondent”) affirming the suspension of her son.  The appeal must be dismissed.

On the morning of October 8, 2008, a student reported to his middle school physical education teacher that he found a metal chain containing bullets on the floor of the boy’s locker room.  A search revealed that two students each had a single shell in their bags.  One of those students was petitioner’s son, who was twelve years old at the time and in eighth grade.  When questioned, the two boys explained that petitioner’s son admired the chain brought to school by the other boy and purchased it from him for ten dollars.  A third student removed it from petitioner’s son’s bag and reported it to his teacher.  Police were called and examined the bullets, finding them not to contain gunpowder.

By letter dated October 8, 2008, the principal suspended petitioner’s son for five days for possession of bullets.  By separate notice that same day, the superintendent advised petitioner that a superintendent’s hearing was scheduled for October 10, 2008.  Petitioner attended the hearing with her son and his father.  By letter dated October 10, 2008, the superintendent informed petitioner of his determination that her son was guilty of possessing bullets which were spent casings fashioned into a bracelet and suspended him through October 31, 2008.  On November 6, 2008, petitioner appealed to respondent.  Respondent upheld the suspension and the appeal ensued.  Petitioner’s request for interim relief was denied on April 30, 2009. 

Petitioner asserts that respondent did not follow proper procedure and failed to provide adequate due process.  She also contends that the penalty is excessive. 

Respondent contends that petitioner’s November 6, 2008 appeal was untimely because it was initiated 27 days after the superintendent’s decision, in violation of respondent’s code of conduct that sets a 10 day limit.  Respondent also asserts that petitioner’s appeal of the penalty is moot because the student returned to school on November 3, 2008.  Respondent denies petitioner’s claim of procedural violations and asserts that the penalty is reasonable.

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).  Because the student returned to school on November 3, 2008, when the suspension ended and any exclusion from extra-curricular activities and field trips was for the remainder of the 2008-2009 school year, which is over, the appeal is moot except to the extent that petitioner seeks expungement of the student’s records (Appeal of M.P., 44 Ed Dept Rep 132, Decision No. 15,123; Appeal of a Student with a Disability, 43 id. 372, Decision No. 15,021).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of V.C., 45 id. 571, Decision No. 15,419).

Petitioner complains that she did not realize the suspension could be extended as an outcome of the hearing and thought it might be reduced.  However, the written hearing notice petitioner admits receiving advised her that the superintendent may consider her son’s record in connection with “determining whether additional discipline should be imposed.”  Therefore, I find that respondent provided reasonable notice.

Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).  At the hearing, petitioner’s son admitted buying the chain of bullets at the middle school from another student and that his conduct was wrong.  Only after police conducted an analysis was it determined the chain was made from spent ammunition.  Under these circumstances, I find there is competent and substantial evidence to support the finding that petitioner’s son was in possession of the bullets.

Petitioner’s due process complaint that respondent should have followed procedures treating her son as a student presumed to have a disability for disciplinary purposes has no merit.  Section 201.5(a) of the Commissioner’s regulations provides, in part:

Where the school district is deemed to have knowledge that the student was a student with a disability before such behavior occurred, such student is a “student presumed to have a disability for discipline purposes.”

A district is only deemed to have knowledge of a disability if one of several conditions is met prior to the time the behavior occurred (8 NYCRR §201.5[b]), none of which are alleged here.  In this case, petitioner alleges that respondent was aware that her son had a medical diagnosis of attention deficit hyperactivity disorder (ADHD).  However, at the hearing, in response to a question from the hearing officer whether her son had been referred to the Committee on Special Education (“CSE”), she stated that her son “does not have a learning disability.”  (Transcript at p.8)  Respondent denies having reason to suspect that petitioner’s son was a student with a disability in need of special education at the time of the incident.  The hearing record indicates that the student was at an eighth grade level academically, participated in honors social studies and had no prior disciplinary record of behavior problems.  (Transcript at pp.6, 8)

Accordingly, petitioner has not met her burden of establishing that §201.5(a) applies in this case.  I further note that since receiving a letter from petitioner dated October 26, 2008, referring her son for an evaluation, respondent’s CSE conducted an evaluation and determined that the student is not a student with a disability.

Since the finding of guilt is upheld and the suspension has been served, I need not address the issue of penalty (see, Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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