Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Geneva regarding student discipline.

Decision No. 17,297

(December 21, 2017)

Legal Assistance of Western New York, Inc., attorneys for petitioner, Molly Owens, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz P.C., attorneys for respondent, Heather M. Cole, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Geneva {“respondent”) to impose discipline on her son (“the student”).  The appeal must be dismissed.

At issue in this appeal are two disciplinary incidents which occurred on February 14, 2013 and March 8, 2013, respectively.  On February 14, the district became aware of statements allegedly made by the student suggesting that he would seek out a classmate and fight with him after school.  Thereafter, the district arranged a meeting between the student, the associate principal and the school counselor.  According to respondent, during this meeting, the student became “highly agitated” and used “threatening and profane language.”  As a result, the student received a five-day suspension.  The record reflects that a manifestation team convened a manifestation determination review (“MDR”) on February 14 and concluded that the student’s in-school conduct was a manifestation of his disability.

After the school day on February 14, the student physically attacked the classmate.

According to the record, respondent convened a long-term suspension hearing on February 27 in connection with both incidents on February 14.  At this hearing, the appointed hearing officer “refused to consider the physical altercation” as a basis for imposing a long-term suspension.

A manifestation team conducted an MDR on February 27 in connection with the “totality” of the student’s conduct on February 14.[1]  The manifestation team concluded that the student’s conduct “was caused by or substantially and directly related to [the student’s] disability.”  The record reflects that, in light of this determination, the district agreed to revise the student’s functional behavioral assessment.  The student returned to school on March 1.

In a letter dated March 6, the superintendent stated that she had found the student guilty of the “charges brought” as his actions “endangered the safety, morals, health and welfare of others and himself” and constituted disorderly and insubordinate conduct.  While the record is unclear, respondent states on appeal that the superintendent only considered the in-school incident on February 14 and did not consider the physical altercation which the hearing officer refused to consider.

On March 8, outside school premises, the student allegedly hit the classmate in the face with a snowball and/or ice.  The associate principal investigated the matter on March 11 and 12.  In connection with this investigation, the associate principal interviewed the classmate as well as six students who witnessed the March 8 interaction between the student and the classmate.  The record reflects that the district imposed a five-day suspension in connection with this incident.  The district also convened a superintendent’s hearing and an MDR on March 20.  The manifestation team determined that the student’s conduct was not a manifestation of his disability.

In a letter dated March 26, the superintendent informed petitioner that she determined that the student was insubordinate and disorderly because his conduct “endangered the safety, morals, health and welfare of others and himself.”  The superintendent imposed a penalty of suspension through the remainder of the 2012-2013 school year. 

Petitioner appealed the short-term suspension arising from the February 14 incident as well as the superintendent’s long-term suspension imposed by the superintendent on March 26 to respondent.  In separate determinations, both dated May 17, respondent denied petitioner’s appeals and upheld the superintendent’s determinations.[2]  This appeal ensued.  Petitioner’s request for interim relief was denied as moot.

Petitioner argues that the February 14 suspension must be expunged because a manifestation team found that the student’s conduct was a manifestation of his disability.  With respect to the suspension for the March 8 incident, petitioner argues that she was deprived of her ability to cross-examine witnesses.  Petitioner further contends that the testimony of the classmate’s parent at the hearing was prejudicial and otherwise disruptive.  Petitioner also contends that, at the hearing, the classmate’s father received confidential information about the student in violation of the federal Family Educational Rights and Privacy Act (“FERPA”).  Finally, petitioner argues that the student is being provided with inadequate alternative education services which were not initiated in a timely manner.

Respondent contends that it is not obligated to expunge the student’s short-term suspension arising from the February 14 incident.  Respondent also argues that it produced competent and substantial evidence of the student’s guilt regarding the March 8 incident.  With respect to the March 20 hearing, respondent argues that it permissibly utilized the written statements of student witnesses due to the student witnesses’ fear of reprisal, and that the presence and testimony of the classmate’s father did not deprive the student of a fair hearing.  Respondent also argues that it made reasonable efforts to deliver alternative education services to the student, including those services required by his individualized education plan (“IEP”), and that any deficiencies were attributable to the student’s actions.

As a preliminary matter, to the extent petitioner raises claims under FERPA, the Commissioner lacks jurisdiction to consider FERPA claims.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502).

With respect to the February 14 incident, petitioner’s sole claim for relief in this appeal is that the short-term suspension must be expunged from the student’s record based on the MDR team’s finding that the conduct was manifestation of the student’s disability.  This claim must be dismissed because petitioner did not raise this issue in her appeal to respondent.  In a letter dated March 28, petitioner argued only that the superintendent erred in her March 6 determination regarding the February 14 incident because the fight did not occur on school grounds; that the classmate instigated the encounter; and the superintendent’s statement that the student “continually threatened a student in school” was not true.  Counsel for petitioner also submitted a written appeal of the superintendent’s March 6 and March 23 disciplinary decisions to respondent which, similarly, did not challenge the February short-term suspension based on the MDR.  Although petitioner states in this appeal that she “requested a timely appeal ... to request expungement of [the student’s] record for the February 15, 2013 [sic] incident that was determined to be a manifestation of his disability,” respondent denies this contention and the record contains no evidence that the issue was raised in petitioner’s two appeals to respondent.  Therefore, petitioner cannot not raise this objection in an appeal pursuant to Education Law §310 (see Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of S.Z. and K.Z., 52 id., Decision No. 16,384).

Turning to the March 8 disciplinary incident, petitioner contends that the associate principal’s introduction of six student witnesses’ written statements at the hearing violated the student’s right to question witnesses against him.  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897).  Generally, the introduction of written statements in lieu of live witness testimony would deprive a student of the opportunity to cross-examine such witnesses (see e.g. Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159).  However, a school district’s interest in protecting the identity of student witnesses against possible retaliation from a potentially violent student may overcome a student’s right to question witnesses against him or her (D.F. v. Bd. of Educ. of Syosset Cent. Sch. Dist., 386 FSupp2d 119, aff’d 180 Fed App’x 232, cert denied 549 US 1179; Appeal of C.M., 53 Ed Dept Rep, Decision No. 16,583).

Here, the associate principal stated at the hearing that the “students did not want their names shared for fear of retaliation” and, in an affidavit submitted with this appeal, further states that the six student witnesses as well as the classmate “did not want to participate in [the student’s] hearing for fear of physical retaliation by [the student].”  The record reflects that, following the student’s physical altercation with the classmate on February 14, the classmate’s injuries were sufficiently severe to warrant admission to the emergency room.  Based on this evidence, I find that the district’s interest in protecting the identities of the students in order to protect them from potential retaliation outweighed the student’s right to cross-examine them (D.F. v. Bd. of Educ. of Syosset Cent. Sch. Dist., 386 FSupp2d 119, aff’d 180 Fed App’x 232, cert denied 549 US 1179; Appeal of C.M., 53 Ed Dept Rep, Decision No. 16,583).

Although petitioner does not directly challenge the student’s guilt, I note that the district proved, by competent and substantial evidence, that the student committed the charged conduct.  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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800).

Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

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).

According to the record, all six student witnesses, via the testimony of the associate principal, stated that the student threw snow and/or ice at the classmate.  Five of the witnesses specified that the student threw the snow and/or ice in the classmate’s face (i.e., the student was “throwing snowballs at [the classmate] trying to get him to fight back”; “kept throwing snow and ice at [the classmate]”; the student “came up around in front of him and threw ice at [the classmate] really hard and it hit him in the face”; the student “got in front of [the classmate] and threw ice and snow in his face”; the student was “picking up snow and hitting [the classmate]”; the student “ran up to [the classmate] and smashed snow in his face”; the student was “throwing snowballs at [the classmate].  His face was red and stinging”).  Moreover, some of the witnesses’ statements indicated that witnesses told the student “to stop” and “leave [the classmate] alone” but that the student “didn’t listen.”  The statements also assert that the classmate “continued walking,” “went a separate way home” and “didn’t do anything because he didn’t want to give [the student] the reaction [he] was looking for.”   

In his statement, the classmate recalled that the student was “throwing snowballs” at him, and he got “hit in the back of the head by a snowball.”  The classmate also alleged that the student “was saying he was ready for round three and another knockout” but the classmate replied that “he didn’t want any more problems.” 

Although the student testified at the hearing, he did not offer any testimony relevant to the March 8 incident but instead disputed the details of an unrelated interaction with the classmate.  Additionally, while petitioner denied the student’s guilt at the hearing, she had no first-hand knowledge of the March 8 incident and merely argued that the classmate was a bully and an aggressor.  However, petitioner’s explanation, even if established, would not nullify a finding of guilt, in light of the seriousness of the student’s conduct and the extent of the injuries he caused (Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,574).

Petitioner further contends that the presence and testimony of the classmate’s father deprived the student of a fair hearing.  I agree with petitioner that the classmate’s father’s testimony was of questionable relevance given his lack of first-hand knowledge concerning the March 8 incident; that his testimony about prior incidents involving the student and the classmate were inappropriate; and that the classmate’s father occasionally disrupted the hearing.  However, the superintendent states in a sworn affidavit that she only considered evidence and testimony pertaining to the March 8 incident in rendering her determination.  Further, both petitioner and the classmate’s father spoke over each other at the hearing, which warranted admonishment from the hearing officer.  Therefore, considering the record as a whole, I do not find that the presence and testimony of the classmate’s father deprived the student of the right to a fair hearing.

Finally, petitioner’s claim that the student was not provided with alternative instruction services in a timely manner and that such services were inadequate must be dismissed as moot.  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. 15,836).  Here, the student has completed the suspension for which he was provided alternative instruction, thus rendering any dispute as to these services moot (Appeal of C.B. and B.R., 50 Ed Dept Rep, Decision No. 16,192).

Nevertheless, petitioner’s claims regarding the timeliness and adequacy of alternative instruction are without merit.  Education Law §3214(3)(e) provides that where a student has been suspended, “immediate steps” shall be taken for his or her attendance upon instruction.  The term “immediate” does not mean instantaneously, but it does mean that a school district must act promptly (Appeal of a Student with a Disability, 48 Ed Dept Rep 154, Decision No. 15,823; Appeal of M.K. and S.K., 45 id. 424, Decision No 15,373; Appeal of W.H., 45 id. 96, Decision No. 15,269).

Alternative instruction must be substantially equivalent to that received by the student prior to the suspension (Appeal of R.S., 48 Ed Dept Rep 215, Decision No. 15,841; Appeal of W.H., 45 id. 96, Decision No. 15,269; Appeal of D.F.B., 43 id. 496, Decision No. 15,064), and equivalency will be determined on a case-by-case basis (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883).  Previous Commissioner’s decisions have found that two hours per day of alternative instruction may fulfill a district’s obligation under the Education Law (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883; Appeal of Camille S., 39 id. 574, Decision No. 14,316).

Here, the evidence in the record reflects that the associate principal contacted petitioner on March 12, the day when the district decided to impose a short-term suspension, to arrange for tutoring for the student.  Both the associate principal and guidance counselor further aver that they arranged for alternate instruction in a timely manner for two hours per day, but that the student was often late or absent for tutoring sessions, failed to follow tutors’ directives and failed to turn in assignments.  Further, although petitioner attributes the student’s failing grades in algebra and living environment to inadequate alternate instruction, the record reflects that the student was failing these classes before alternative instruction commenced.

Finally, to the extent that the district provided the student with alternative instruction pursuant to its obligations under the federal Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law, any challenges to these services must be dismissed for lack of jurisdiction.  Claims brought to enforce rights under the IDEA and Article 89 of the Education Law must be addressed through the due process provisions of the IDEA and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).

THE APPEAL IS DISMISSED.

END OF FILE