Decision No. 13,399

(April 7, 1995)

SOBOL, Commissioner.--Petitioners challenge the suspension of their daughter for three days. The appeal must be sustained.

Petitioners' daughter, Summer, was a tenth grade student at Niskayuna High School in respondent school district at the time of the incident that gave rise to this appeal. On May 27, 1994, Summer and another student were released from English class to attend a sectional track meet pursuant to a memo issued by the girls track coach which requested the release of certain students at 1:05pm. On her way to the bus to the meet, Summer and another student were stopped in the hallway by a teacher, Mr. Hahnenberger, who was acting as hall monitor. When Mr. Hahnenberger stopped Summer, because it was prior to the end of the period at 1:05 p.m., she explained that she was authorized to be in the hallway. When Mr. Hahnenberger turned away from Summer to speak to someone else, Summer proceeded down the hallway, since she was concerned that the bus would leave without her if she was late. The teacher followed Summer and allegedly became angry with her and uttered a statement to Summer that she perceived as a threat.

Summer proceeded to her locker in the athletic locker room and boarded the bus. The boys' track coach came to the bus and removed Summer, who then met with the assistant principal and told him what had occurred. Summer was then allowed to return to the bus and depart with her team. That afternoon, the assistant principal contacted petitioner Sherry Pierson and informed her that her daughter would be suspended for three days. Petitioners requested a meeting with the principal prior to the suspension. The principal of the high school met with petitioners on May 31, 1994. Summer and Mr. Hahnenberger did not attend the meeting.

After the meeting, the principal questioned the student who had been with Summer when they were first detained in the hallway. On May 31, 1994, the principal informed petitioner Quinton Pierson by telephone that his investigation of the incident was closed and the he would, indeed, impose the three-day suspension. Petitioners contacted the superintendent to appeal the principal's decision. The superintendent responded to petitioners' request by letter dated June 6, 1994, in which he informed petitioners that they would have "an opportunity for an informal conference with the principal as the person in parental relationship and shall be authorized to ask questions of the complaining witnesses". In that letter, the superintendent characterized the suspension as "in-school." By letter dated June 8, 1994, petitioners noted that this was the first time the term "in-school" suspension was used and agreed under protest to attend another meeting on September 8, 1994 with the principal, the school attorney and Mr. Hahnenberger. At that meeting, petitioners allege that they were allowed to ask the teacher some questions, but the teacher was directed by the principal and school attorney to not answer other relevant questions asked by petitioners. Summer was not present at the meeting.

Following the September 8, 1994 meeting, the principal sent a letter to petitioners stating that Summer had been insubordinate and would receive a three day in-school suspension. This appeal ensued. Petitioners' request for an interim order pending a determination on the merits of their appeal was granted on October 3, 1994.

Petitioners allege that respondent violated Summer's due process rights and Education Law '3214 by failing to allow petitioners to question complaining witnesses. Petitioners therefore seek a reversal of respondent's determination and further seek to expunge the suspension from Summer's record. Petitioners also allege that their daughter was treated more harshly than other students because she is black and that respondent's actions were racially motivated. Respondent contends it acted properly regarding Summer's suspension and that the penalty imposed was not excessive. Respondent also denies that any of its actions were racially motivated.

Education Law '3214 provides in pertinent part:

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 Forster, 31 Ed Dept Rep 443; Appeal of Danison, 31 id. 169; Matter of Watts, 23 id. 459; Matter of Roach, 19 id. 377). Nonetheless, the procedures governing 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 my review of the record, I find that the procedures followed by respondent with regard to this suspension were unfair. Although petitioners met with the principal on May 31, 1994, the matter remained unresolved and petitioners appealed the suspension to the superintendent. The superintendent responded to petitioners with a letter granting them an opportunity for an additional informal conference with the principal. This letter specifically stated that petitioners would "be authorized to ask questions of the complaining witnesses." That meeting did not occur until several months later, on September 8, 1994, and it appears that petitioners were not allowed to question the complaining teacher on some issues. Petitioners also allege, and respondent does not adequately refute, that respondent's ttorney stated that he was representing both petitioners and respondent in this dispute.

I am also troubled by petitioners' allegation that the first time they were informed that the three-day suspension initially imposed by the school principal on May 31, 1994 would be an in-school suspension was in the superintendent's letter to them dated June 6, 1994. Respondent does not dispute this scenario and only refers to the suspension in its papers as an "in-school" suspension. I thus find that fairness required the principal to clearly inform petitioners of the type of suspension he sought to impose on May 31, 1994, the date when he first informed petitioners of their daughter's suspension.

The decision to suspend a student must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Stewart, 34 Ed Dept Rep 193; Appeal of Kittell, 31 id. 419; Appeal of Ezard, 29 id. 135). The record indicates that Summer did not return to her classroom when directed to by the hall monitor because she believed that she was authorized to be in the hallway to attend the track meet. However, even if respondent determined that Summer was insubordinate for failing to return to her classroom, respondent was obligated to follow appropriate procedures and consider Summer's anecdotal record in determining a penalty appropriate to her offense. In fact, the record is devoid of any indication that Summer has any prior disciplinary record at all.

Where the penalty is excessive in a student discipline case, I will substitute my judgment for that of the board of education (Appeal of Stewart, supra; Appeal of Nathaniel D., 32 Ed Dept Rep 67; Matter of Reynolds, 21 id. 228). In this case, Summer was given a three day in-school suspension for what appears to be her first offense of insubordination. This penalty is excessive in view of the fact that Summer legitimately believed that she had the right to be in the hallway, having been dismissed by her English teacher pursuant to a memo from the track coach. The fact that the penalty is excessive, coupled with the procedural irregularities in respondent's suspension procedure, leads me to the conclusion that the suspension must be vacated.

Finally, petitioners allege that respondent treated their daughter differently because of her race. As proof, petitioners state that their daughter received a three-day suspension for her alleged misconduct while a white student received a significantly reduced penalty for more significant misconduct. Petitioners submit a handwritten note from another student which purportedly demonstrates that school officials reduced a one day in-school suspension imposed upon him in connection with a dispute with a teacher to nine after-school detentions once his parents intervened on his behalf. I note for the record that racism is a serious charge that should not be taken lightly. However, the fact that a white student received a lesser penalty than petitioner's daughter who is black in connection with a completely separate incident does not prove that respondent acted with racist intent in this case. While petitioners have made conclusory allegations of respondent's racial animus, they have failed to submit proof sufficient to support such charges. Since they have not met their burden of proof with regard to these charges, I cannot conclude that respondent treated petitioners' daughter differently based on her race.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent expunge petitioners' daughter's records of the suspension imposed.

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