Appeal of JOHN DOE, on behalf of his daughter JANE DOE, from action of the Board of Education of the Schalmont Central School District regarding student discipline.

Decision No. 17,323

(February 13, 2018)

Ferrara Fiorenza PC, attorneys for respondent, Jennifer E. Mathews, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Schalmont Central School District to impose discipline on his daughter (“the student”).  The appeal must be dismissed.

Prior to the events described in this appeal, the student was found eligible for special education and related services pursuant to the Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law.  According to the record, at the conclusion of the 2009-2010 school year, respondent’s committee on special education (“CSE”) recommended that the student be declassified.  Thereafter, the student received testing accommodations in the form of extended time and administration of tests in a small group in a separate location, apparently as declassification support services (see 8 NYCRR §§200.1[ooo] and 200.4[d][1][iii]).

On May 8, 2015, the student intervened in a physical altercation involving her brother and several other students.  According to the record, the student physically struck student C.M., one of the participants in the fight, at least once.  A school resource officer (“SRO”) eventually arrived and assisted in breaking up the fight.  The SRO attempted to calm down the student who, according to the SRO, repeatedly said something to the effect of “I hit him or I got shots in....”

In a letter dated May 8, 2015, the principal of respondent’s high school imposed a five-day suspension for “Assault with Physical Injury or Threat of Injury On school property.”

Respondent convened a long-term suspension hearing on May 18, 2015.  In a written decision dated May 18, 2015, the superintendent found that the district had proven the student’s guilt by competent and substantial evidence.  The superintendent further found that the student had been “declassified as a student with a disability ... and ha[d] not been identified further as a student with a 504 plan.”  The superintendent imposed a penalty of a five-month suspension based upon the student’s conduct as well as her anecdotal record, which demonstrated, according to the superintendent, “a clear pattern of aggressive behavior ... toward students as well as adults.”  Petitioner appealed this determination to respondent.  In a letter dated June 25, 2015, respondent indicated that it considered petitioner’s appeal on June 22, 2015, and had decided to uphold the superintendent’s determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 22, 2015.

Petitioner argues that a student “known to have a disability should be treated as such” pursuant to 8 NYCRR §201.5(a), even if the student is not eligible for special education.  Petitioner further contends that the student was being educated under an accommodation plan pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504” or “504”) and, thus, the district erred by failing to conduct a manifestation determination review (“MDR”) to determine whether the student’s conduct was a manifestation of her disability.  Petitioner also argues that the superintendent improperly admitted into evidence, and allowed to be viewed, a video recording of a prior disciplinary incident involving the student.  According to petitioner, playing such video during the penalty phase of the hearing was prejudicial and constituted a “substantial factor” in the penalty imposed on the student.  Petitioner additionally contends that the student’s penalty was excessive, and that “[t]o the extent” the student’s return to school was conditioned upon her participation in counseling, this was improper.  Petitioner requests a determination that the imposed penalty was excessive and expungement of the disciplinary incident from the student’s record.

Respondent denies that the student was educated under a Section 504 accommodation plan at the time of the events described in this appeal.  Respondent further contends that the student admitted her guilt to the charged conduct and that the evidence in the record supports the student’s guilt by competent and substantial evidence.  Respondent additionally submits that a five-month suspension was an appropriate penalty under the circumstances.

First, petitioner argues the student was, in fact, receiving accommodations pursuant to Section 504 at the time of the disciplinary incident and was thus entitled to an MDR prior to the imposition of a suspension.  This argument is not supported by the evidence in the record.  According to the record, petitioner contacted a high school guidance counselor in the fall of 2014 and expressed concerns regarding the student’s academic performance in math class.  Thereafter, the district provided additional support to the student, the exact extent of which is unclear from the record.  It appears that the student received additional services from at least three separate providers, and that at least one of these providers provided “social work” services to the student.

The student’s mother testified that the guidance counselor and respondent’s director of pupil personnel services (“PPS director”) both told her that the services which the district provided were part of a “504 plan” for the student.  However, the guidance counselor and PPS director denied making such statements.  The guidance counselor testified that the district convenes weekly meetings with district “staff ... to discuss students who ... could potentially struggle.”  At one such meeting, staff members discussed whether the student might be eligible for services pursuant to Section 504.  According to the record, the staff members concluded that the combination of extra help the student was receiving would be “exactly what she would get with the 504 [plan].”  The guidance counselor further testified that he “believed” that this determination was communicated to petitioner’s wife.  The guidance counselor additionally testified that, after communicating with the student’s mother, who was pleased with the student’s progress, he did not “have any more contact with [her] ... because I talked to [her] and she was doing well.”  The PPS director testified that there was no documentation in the student’s file concerning a Section 504 plan; that she did not “recall ever saying [the student] had a 504 [plan]”; and that she did not recall a conversation with the student’s mother regarding a Section 504 plan.

The record contains an email from the student’s mother to the guidance counselor dated January 19, 2015.  In this email, the student’s mother stated that she had “left a message” with the PPS director “regarding [the student’s] options for extra assistance and support.”  The student’s mother further reported in the email that the student had done “well with extra support in Alegebra [sic]” and requested “similar help in Science to avoid struggles.”  The student’s mother stated: “[s]ince this does not require a meeting with the Special Ed Dept, I am confident that it will not take longer than the end of this week (Jan. 23) to be in place.”  If the student was already receiving accommodations pursuant to Section 504 in January 2015, any change in the nature or delivery of such accommodations would necessarily require revision to the student’s 504 plan.  Thus, it is unclear why petitioner felt that an adjustment to the student’s support services would “not require a meeting” with respondent’s special education department.

As respondent correctly notes, a district may provide additional support to general education students.  Indeed, a district must, for example, provide academic intervention services to a student if he or she scores below “the State designated performance level on one or more of the State intermediate assessments in English language arts, mathematics or science” and/or “the State designated performance level on any one of the State examinations in English language arts, mathematics, social studies or science that are required for graduation” (8 NYCRR §100.2[ee][3][1][a], [c]).  Thus, providing services to a general education student does not automatically render a student eligible for special education, related services or accommodations under the IDEA or Section 504; these laws have distinct eligibility standards which must be satisfied before a student may receive special education or related services or accommodations.  Although a determination of Section 504 eligibility is not within the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369), I note that petitioner has not even alleged, let alone proved, that the student is presently a “qualified individual with a disability” within the meaning of Section 504 (29 USC §794[a]).  This is a required element of a claim of discrimination under Section 504 (B.C. v. Mount Vernon Sch. Dist., et al., 837 F3d 152).  Therefore, on this record, petitioner has failed to meet his burden of proving that the student had been determined to be eligible for services under Section 504 and was receiving services pursuant to a Section 504 accommodation plan at the time of the disciplinary incident.

Petitioner further argues that the student should have been treated as a student presumed to have a disability based on the services which the district provided to the student during the 2014-2015 school year.  Section 201.5(a) of the Commissioner’s regulations provides, in part:

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

Section 201.5 of the Commissioner’s regulations identifies three circumstances under which a student may be presumed to have a disability:

1. the parent of such student has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency or to a teacher of the student that the student is in need of special education, provided that such expression of concern may be oral if the parent does not know how to write or has a disability that prevents a written statement;
2. the parent of the student has requested an evaluation of the student pursuant to section 200.4 or 200.16 of this Title; or

(3) a teacher of the student, or other personnel of the school district, has expressed specific concerns about a pattern of behavior demonstrated by the student, directly to the director of special education of the school district or to other supervisory personnel of the school district.

Here, there is no evidence that petitioner submitted a written referral to supervisory or administrative personnel of the school district or a teacher of the student for a determination as to whether his daughter was eligible to be classified as a student with a disability, as required under §201.5 of the regulations.  Similarly, there is no evidence that a teacher of the student or other personnel of the school district expressed specific concerns about a pattern of behavior demonstrated by the student.  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).  Petitioner submits no evidence to demonstrate that any of the conditions set forth in 8 NYCRR §201.5(b) were met in this case.  Accordingly, petitioner has not met his burden of establishing that 8 NYCRR §201.5(a) applies under the circumstances and that the student should be presumed to have a disability for disciplinary purposes (Appeal of a Student Suspected of Having a Disability, 55 Ed Dept Rep, Decision No. 16,912; Appeal of a Student Alleged to Have a Disability, 49 id. 302, Decision No. 16,034).  Thus, petitioner has not proven that his daughter is entitled to a manifestation determination as a student presumed to have a disability.

While the Commissioner has previously held that a district must conduct a “nexus” determination where, as here, a student was previously eligible for services under the IDEA but was thereafter declassified, those appeals have been effectively superseded by subsequent amendments to the IDEA and 8 NYCRR §201.5 (Appeal of a Student Suspected of Having a Disability, 35 Ed Dept Rep 492, Decision No. 13,610; Appeal of a Student with a Disability, 34 id. 556, Decision No. 13,408).  Effective December 29, 2005, §201.5 of the Commissioner’s regulations was amended to restrict the definition of students who may be considered presumed to have a disability for purposes of student discipline in conformance with amendments to 20 USC §1415(k)(5) made by Pub. Law 108-446.  Those appeals mandating a nexus determination for students who had been previously deemed eligible for services under the IDEA but were later declassified were resolved under the more permissive standard which existed prior to December 29, 2005.  In light of the December 29, 2005 amendments, I find that those appeals are no longer good law and decline to apply their reasoning.

Having concluded that the district was not required to conduct a manifestation determination, I will next consider petitioner’s challenges to the student’s long-term suspension.  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). 

Here, the evidence in the record establishes the student’s guilt by competent and substantial evidence.  According to the SRO who arrived at the high school shortly after the fight, the student

just kept saying ... [s]omething to the effect [of], I, I, I hit him or I got shots in on [that] piece of s***, or something to that effect.  She just kept saying the same thing over and over again.

The record reveals that the individual to whom the student was referring was student C.M., who had placed her brother in a chokehold.  On appeal, petitioner does not deny that she physically attacked student C.M.  Therefore, the student’s admission constitutes competent and substantial evidence that she engaged in the charged conduct (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).

The evidence in the record further supports a finding that the student was guilty of the charged conduct.  Student witness W.T. testified that he witnessed the student “kind of slapping” student C.M. “[o]nce [or] twice” but “at least once.”  Student T.H. similarly testified that the student hit student C.M. “a couple of times in the face.”  Therefore, in addition to the student’s admission, the evidence in the record supports respondent’s determination that the district proved the student’s guilt as to the charge of assault with physical injury or threat of injury on school property.

Next, petitioner argues that the penalty of a five-month suspension was 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 S.U., 57 Ed Dept Rep, Decision No. 17,159; Appeal of F.W., 48 id. 399, Decision No. 15,897).

I do not find the student’s penalty excessive under the circumstances.  As detailed above, the student admitted, and the record establishes, that she physically assaulted student C.M.  Moreover, after finding the student guilty of the charged conduct, the superintendent proceeded to consider the student’s anecdotal record, which included four prior disciplinary incidents which occurred during the current (i.e., 2014-2015) school year.  Three of these incidents involved serious violations of respondent’s code of conduct: in November 2014, the student engaged in a “verbal attack” which included “physical threats” toward another student; in February 2015, the student “left class to confront a student in the library,” used offensive and vulgar language, and threw a trash can at a classmate which hit a staff member; and in March 2015, the student “went looking for a student to fight her” and subsequently fought with the student.[1]

While petitioner contends that the student’s actions were justified because the student witnessed her brother being attacked by C.M. and sought to defend him, the student nonetheless admitted that she physically assaulted student C.M. (see Appeal of R.C., 49 Ed Dept Rep 275, Decision No. 16,023).  While I am sympathetic to the student’s situation, physical violence in public schools should not be tolerated, and the superintendent was well within her discretion to impose a five-month suspension given the student’s conduct described herein and the incidents described in her anecdotal record.

Petitioner also argues that playing a video of a prior incident in which the student was involved during the guilt phase of the hearing was prejudicial and was a “substantial factor” in the penalty imposed on the student.  In her decision, the superintendent noted that the student’s anecdotal record, which was entered into the record as an exhibit, contained four other “incidents/behavioral referrals” for the student since the start of the school year, one of which was captured on the video and was also entered into evidence as an exhibit.  The superintendent further stated that the principal recommended one full school year of suspension as a penalty.  Other than petitioner’s conclusory assertions, however, the record contains no evidence to support a finding of bias or prejudice on the part of the superintendent, as petitioner claims.  Indeed, the superintendent imposed a penalty which was shorter than that recommended by the principal at the hearing.  Accordingly, petitioner has failed to carry his burden of proof with respect to this claim.

Finally, petitioner’s argument that the student’s suspension was inappropriate “to the extent” it was conditioned upon the student’s completion of community service is not supported by the record.  There is no evidence in the record that the superintendent or respondent imposed such a requirement.  Although the superintendent’s decision “recommend[ed] that [the student] be scheduled for regular counseling with the school counselor or social work[er],” this recommendation only applied to when the student “return[ed] to the high school.”  Thus, petitioner’s claim is without merit.

I have reviewed the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE