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Decision No. 13,163

Appeal of DIANE EISENHAUER, on behalf of her son, CRAIG, from action of the Board of Education of the Spencerport Central School District, relating to student discipline.

Decision No. 13,163

(April 29, 1994)

Silver, Feldman & Leonardo, attorneys for petitioner, Philip M. Silver, Esq., of counsel

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, attorneys for respondent, Daniel R. Mooney, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's suspension of her son, Craig, from school for the remainder of the school year. Petitioner sought an interim order allowing Craig to return to school pending a decision on the merits. An interim order was issued. The appeal must now be sustained.

At the time of his suspension, Craig was seventeen and a tenth grade student in respondent's high school. Following a hearing which neither parent attended, Craig was suspended for the remainder of the school year for cutting his physical education class four times. According to the record, petitioner did not receive any notice of the hearing until her husband picked up a certified letter at the post office, informing them that a hearing was scheduled the next day. The record further indicates that petitioner telephoned the hearing officer the following morning to inform him that due to the lack of timely notice, neither she nor her husband could attend. Although petitioner characterizes her conversation with the hearing officer as a request for an adjournment, respondent denies that such a request was ever made. According to petitioner, when the hearing officer informed her that the hearing would proceed as scheduled, she instructed Craig not to attend. Despite her son's objections, respondent's guidance counselor drove him to the administration building where the hearing took place. At the hearing, Craig apparently admitted to the charges, although he now denies them.

Following the hearing, petitioner was informed in writing that her son was suspended from school for the remainder of the year. Petitioner appealed to respondent board of education, which upheld the decision. This appeal ensued.

Petitioner alleges, among other things, that by holding the hearing without the parents' attendance and compelling her son's attendance over her objections, respondent denied her son due process. Petitioner also alleges that respondent erred by improperly considering her son's anecdotal report because its contents go beyond the charges against him. In addition, petitioner claims that her son's failure to attend his physical education class constitutes neither insubordination nor disorderly conduct as charged. Moreover, petitioner argues that excluding her son from school for the remaining six months of the school year for cutting four physical education classes constitutes an excessive penalty. Petitioner seeks an order reversing the superintendent's decision and dismissing the charges. In the alternative, petitioner seeks a new hearing, scheduled upon proper notice, and an order immediately returning Craig to school pending a new hearing.

Respondent argues that petitioner was not denied due process because the notice of the hearing prepared by the district was received by the post office for delivery by certified mail ten days before the scheduled hearing. Respondent asserts that the hearing officer's review of the student's anecdotal record after finding the student guilty of the charges, was proper. Respondent further maintains that its charges against the student based on his cutting classes do not involve truancy but constitute insubordination and disorderly conduct, which subjects him to suspension. Respondent also asserts that its decision to suspend Craig for the balance of the school year was proper since his failure to attend physical education continued, despite several warnings.

Education Law '3214(3)(c) provides:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, . . . (Emphasis supplied)

Although the post office receipt indicates that petitioner did not receive notice of the hearing until the day before it was held, respondent argues, in essence, that its obligation to provide "reasonable notice" was satisfied by its preparation of a certified letter received by the post office ten days earlier. Based on the foregoing, respondent contends that petitioner must have received timely notice from the post office to pick up the letter. Respondent offers no evidence to support its claim.

Petitioner's statement regarding the date she received actual notification from the post office is deemed to be true. In the absence of any proof that petitioner was notified, even by telephone, that a certified letter scheduling a hearing awaited her, there is no basis to presume that, under the circumstances, petitioner received timely notice. Alternatively, had respondent arranged to provide notice by overnight mail or personal delivery, absent a showing by petitioner that the letter never arrived, the petition would have been dismissed. Since such was not the case, I find respondent's refusal to adjourn the hearing, under the facts of this case, arbitrary. Accordingly, because of the lack of timely notice, petitioner was effectively denied the opportunity to participate in her son's hearing in violation of Education Law '3214. Based on the foregoing, I issued an interim order directing respondent to hold a new hearing.

In view of my interim order, the question of penalty may be academic. Nonetheless, whether the suspension of the student for the remainder of the school year for cutting physical education classes is excessive deserves comment.

Notwithstanding the importance of school attendance, and the fact that cutting classes disrupts the orderly functioning of the schools, I find respondent's suspension of this student for the remaining six months of the school year for cutting four physical education classes, excessive (See Appeal of Bliss, 28 Ed Dept Rep 369). In fact, since this student's exclusion from school for almost two and one-half months, by the time the interim order was issued, was already excessive, there is no basis to impose any further penalty.

I have considered petitioner's other claims and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that hereinafter respondent take all reasonable steps to assure that parents receive timely written notice of a hearing scheduled pursuant to Education Law '3214.

IT IS FURTHER ORDERED that any record of the first suspension, including the penalty imposed, be expunged from this student's record.

END OF FILE