Appeal of D.W., by his parent, from action of the Board of Education of the North Syracuse Central School District regarding student discipline.

Decision No. 16,436

(December 10, 2012)

Legal Services of Central New York, Inc., attorneys for petitioner, Crystal M. Doody, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Subhash Viswanathan, Esq., of counsel

KING, JR. Commissioner.--Petitioner appeals the determination of the Board of Education of the North Syracuse Central School District (“respondent”) affirming the suspension of her son (“the student”).  The appeal must be sustained in part.

During the 2010-2011 school year, the student attended high school in respondent’s district.  On September 23, 2010, while serving an in-school suspension, the student left the building without permission.  Thereafter, he returned to the building, apparently to get his girlfriend to leave with him.  When approached by the school dean, he used obscenities and walked away.  The principal intercepted the student and put his hand on the student’s arm.  According to the record, the student pushed the principal’s hand away and said, “Don’t f*** touch me.”  At that point, the principal escorted him out of the building.

The student was charged with “leaving school without permission, insubordination, obscenities [sic] at staff and harassment of staff” within respondent’s district.  A superintendent’s hearing was scheduled for September 29, 2010 but was adjourned to October 4, 2010 at petitioner’s request.  The hearing was conducted before a hearing officer who determined the student was guilty of the charges.  By letter dated October 6, 2010, the superintendent adopted the hearing officer’s findings and suspended the student for the remainder of the 2010-2011 school year.  By letter dated October 28, 2010, petitioner appealed the suspension to respondent.[1] By letter dated November 23, 2010, respondent informed petitioner that it had considered the appeal at its November 15, 2010 meeting and affirmed the suspension.  This appeal ensued.

Petitioner claims the suspension imposed by respondent was excessive and argues that the student’s behavior was a manifestation of a disability.  Petitioner seeks reduction of the length of suspension and expungement of the student’s record accordingly.  She also requests an order requiring respondent to develop an appropriate placement for the student and to amend its policies and practices regarding suspensions.

Respondent contends that the penalty imposed was appropriate, and that petitioner has failed to demonstrate that its determination was arbitrary, capricious or an abuse of discretion.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,386).  Because the student has served the suspension, the appeal is moot except to the extent that petitioner seeks expungement of the suspension from the student’s record (Appeal of L.O. and D.O., 47 Ed Dept Rep 194, Decision No. 15,666; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student with a Disability, 44 id. 136, Decision No. 15,124).

Petitioner does not challenge the finding of guilt on the charges.  However, she asserts that the student’s conduct was a manifestation of a disability.  It appears from the record that on August 25, 2010, prior to the suspension at issue in this appeal, petitioner had requested that her son be evaluated to determine if he has a disability.  In the hearing officer’s findings of fact, which were adopted by the superintendent, the hearing officer plainly indicates that an evaluation of the student had yet to be conducted.  Accordingly, at the time of the suspension, the student was a “student presumed to have a disability for discipline purposes,” as defined in Education Law §3214(3)(g)(2) and 8 NYCRR §201.2(n) and was, therefore, entitled to the same protections as a student with a disability (see 34 C.F.R. §300.534).  This includes the right to a manifestation determination pursuant to 34 C.F.R. §300.530 where the suspension would result in a change in placement, as defined in 34 C.F.R. §300.536.  A suspension in excess of 10 consecutive school days would constitute a change in placement.  In this instance, 10 consecutive school days ran from September 23 through October 6, 2010.  Any suspension thereafter constituted a change in placement. 

There is no indication in the record that a manifestation determination was made by a duly constituted manifestation team prior to the student’s suspension for more than 10 consecutive school days.  The record indicates that the student had been diagnosed with a bi-polar disorder, had been hospitalized because of mental health issues and had been referred for an evaluation for a possible disability at the time of the long-term suspension.  There is no question but that respondent should have considered him to be a student presumed to have a disability at the time it imposed the suspension in excess of 10 consecutive school days.  Yet respondent imposed the suspension and made a change in placement without first conducting a manifestation determination and, thereby, violated the student’s rights under the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. §1401 etseq.), 34 C.F.R. §§300.530–300.536, and Education Law §3214(g). 

It appears from the record, however, that respondent’s committee on special education (“CSE”) subsequently determined that the student is not a child with a disability under the IDEA and is not eligible for special education services, but the date of that determination does not appear in the record.  The student’s suspension from October 7, 2010 until the date of the CSE’s determination that the student is not a child with a disability was improper for the reasons set forth above.  Consequently, respondent must expunge any reference of the student’s suspension during that period from his record. 

Petitioner also alleges that suspension for nine months is 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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).  Petitioner claims that a nine-month suspension should be reserved for the “worst of behaviors.”  She argues that her son’s conduct did not involve drugs, violence or a physical altercation and, thus, such a suspension is not warranted.

Respondent maintains that, in leaving school without permission, refusing to follow the reasonable directives of district administrators, using obscenities toward administrators and pushing the principal away, the student’s conduct was antagonistic and threatening, warranting such disciplinary action.  Respondent also cites the student’s anecdotal record which reflects 16 prior disciplinary incidents, including six other suspensions from school.  Respondent contends that the current charges, when considered with the student’s past record, warrant a lengthy suspension.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

The student’s actions in leaving the school and then returning to get his girlfriend placed himself and another student at risk.  Moreover, he repeatedly ignored the directives of two administrators.  He also used obscenities toward them and physically pushed one away, contravening petitioner’s assertion that no physical altercation occurred.  Such conduct constitutes insubordination, is antagonistic and disruptive, as well as potentially harmful to the student and others.

The student also had already been suspended in school and out of school multiple times, as well as disciplined in other ways for misbehavior.  It is noteworthy that, at the time of this misconduct, he was already serving an in-school suspension.  Accordingly, I cannot conclude that the suspension imposed upon the student at this juncture was arbitrary, capricious or an abuse of respondent’s discretion or so excessive as to warrant substitution of my judgment for that of respondent (seeAppeal of Ezard, 29 Ed Dept Rep 135, Decision No. 12,245).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED THAT respondent’s suspension of D.W. from October 7, 2010 through the date respondent’s Committee on Special Education determined that he is not a child with a disability pursuant to the Individuals with Disabilities Education Act be expunged from his record. 

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