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Decision No. 12,693

Appeal of CAROLE FORSTER from action of the Board of Education of the Herricks Union Free School District relating to student discipline.

Decision No. 12,693

(April 30, 1992)

Schiffmacher, Cullen, Farrell & Limmer, Esqs., attorneys for respondent, Eugene Cullen, Esq., of counsel

SOBOL, Commissioner.--Petitioner brings this appeal on behalf of her son, challenging the imposition of a one day in-school suspension. Petitioner requests that the suspension be annulled. The appeal must be sustained in part.

As part of an investigation involving students who had been taking bets on football games on school grounds, petitioner's son was questioned by respondent's assistant principal. When confronted, the student readily admitted that he had placed a one dollar bet in school. At a meeting held with the principal and assistant principal on October 3, 1991 to discuss the incident, petitioner and her husband were informed that their son would receive a one day in-school suspension for violating a school rule that prohibits gambling.

Objecting to the proposed discipline, petitioner appealed to respondent's assistant superintendent and then to the superintendent who upheld the initial determination. Thereafter, petitioner appealed to respondent board of education. In a letter dated November 12, 1991, the board president denied petitioner's request, stating that the board lacked jurisdiction to reverse the principal's decision. Although petitioner's son was scheduled to serve his suspension on November 22, 1991, respondent agreed to delay its implementation pending the outcome of this appeal.

Petitioner alleges that respondent's suspension of her son violated Education Law "3214 and its own disciplinary policy. Petitioner further claims that students who are suspended do not receive substantially equivalent education as required by law.

Respondent contends that it followed the proper procedures and that under the circumstances, an in-school suspension is an appropriate penalty. Specifically, respondent contends that because the principal's finding of guilt was based on the student's own admission, there is no need to question witnesses. Moreover, respondent asserts that petitioner and her son were given a full opportunity for an informal conference with the school principal in accordance with Education Law "3214(3)(d). Finally, respondent board denies that it does not provide substantially equivalent education to students who are suspended from school.

Petitioner's claim that respondent violated Education Law "3214 cannot be sustained. Despite the assertions of both parties to the contrary, the procedures set forth in Education Law "3214 do not apply to in-school suspensions (Appeal of Danison, 31 Ed Dept Rep 169; Appeal of Watts, 23 id. 459; Matter of Roach, 19 id. 377). Nonetheless, the procedures governing any suspension of student privileges or the imposition of discipline must be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of Danison, supra; Matter of Watts, supra).

Upon a review of the facts, I find the procedures followed in the principal's suspension of petitioner's son fair. The record demonstrates that prior to the suspension, petitioner and her husband met with the principal and assistant principal to discuss the incident. Furthermore, the fact that petitioner's son gambled on school grounds, in express violation of the student discipline code, is not in dispute. Therefore, even though petitioner was summarily denied an appeal to the Board of Education, I find the procedures followed in reaching the decision to suspend her son, fair.

I point out, however, that contrary to respondent's assertion, a board of education has jurisdiction to review any disciplinary action initiated by a teacher or administrator against a student. In particular, Education Law "1709(2) gives a board of education broad powers to establish rules and regulations regarding the maintenance of order and discipline within facilities subject to its authority (Matter of Roach, 19 Ed Dept Rep 377). In addition, Education Law "2801 requires a board of education to have rules and regulations for the maintenance of order on school district property, including appropriate penalties for violations of those rules. Despite delegating its authority to enforce school rules, a board of education retains the authority to review any actions taken on its behalf. Accordingly, respondent's refusal to review petitioner's son's suspension, based upon its contention that it had no authority to do so, was improper.

Petitioner's allegation that respondent violated its own discipline code should therefore be reviewed by respondent's board. Respondent's discipline code provides for in-school suspensions and specifically prohibits gambling on school grounds. Notably, respondent's by-laws indicate that, depending on the nature of the violation, student discipline should be progressive. An in-school suspension is listed 14th out of a possible 16 penalties on the board's list of penalties. Notwithstanding respondent's apparent progressive discipline policy, the principal imposed a one day in-school suspension for an act, albeit prohibited by the board's discipline code, which was the student's first offense. Moreover, the record indicates that the student readily admitted his guilt and expressed remorse for his actions. Because respondent declined to review the principal's determination despite its authority to do so, I am remanding this case to the board of education to determine if the penalty imposed is consistent with its policy on progressive discipline.

Petitioner's assertion that the alternative instruction provided to students placed on in-school suspension violates Education Law "3214 cannot be sustained. Although petitioner's claim is premature because the suspension may be imposed after respondent board's review, I will nevertheless address the adequacy of respondent's program. Education Law "3214(3)(c) requires that a student of compulsory attendance age who is suspended from school receive alternative instruction. while that provision ensures that students who have been suspended receive alternative instruction, "3214 does not apply to students placed on in-school suspension who receive substantially equivalent instruction (Application of a Child Suspected of Having a Handicapping Condition, 31 Ed Dept Rep 42; Matter of House, 11 Ed Dept Rep 215).

Whether a program offers substantially equivalent instruction must be decided on a case by case basis. The provision of study halls does not satisfy the obligation to provide alternative instruction (Application of a Child Suspected of Having a Handicapping Condition, supra; Appeal of Ackert, 30 id. 31). Additionally, the assignment of homework, with little else, is insufficient (Matter of Malpica, 20 Ed Dept Rep 365). In this case, petitioner makes conclusory statements regarding the adequacy of respondent's in-school suspension program, but fails to provide any supporting evidence. Respondent asserts that its in-school suspension program provides for classroom assignments and examinations to students. Additionally, respondent claims that a teacher provides individualized tutoring, as needed, while he/she oversees the program and the student's completion of assignments. Based on the foregoing I find that respondent's program provides substantially equivalent instruction. Petitioner's claim regarding the adequacy of its alternative instruction is, therefore, dismissed.

Although petitioner's general challenge to respondent's in-school suspension policy is also premature, since the issue may be ripe following the board's review, it deserves examination. According to the record, respondent's policy denies students placed in "in-school suspension" the right to participate in extra help classes set up to provide assistance to students in need. Such restrictions prevent those students from obtaining remedial attention. To the extent this aspect of respondent's policy disregards the educational needs of the students involved, it requires revision.

I have reviewed petitioner's other claims and find them to be without merit.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent review the imposition of this suspension to determine if it is in keeping with its policy for progressive discipline.

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