Decision No. 13,444

(July 7, 1995)

Walter, Thayer & Mishler, P.C., attorneys for petitioners, Mark S. Mishler, Esq., of counsel

Tabner, Laudato and Ryan, Esqs., attorneys for respondent, C. Theodore Carlson, III, Esq.,

of counsel

SHELDON, Acting Commissioner.--Petitioners challenge their grandson's five-day suspension from school and request that respondent be directed to expunge the suspension from the student's record. The appeal must be sustained.

Azarr Johnson has been a student in the South Colonie Central School District since at least September 1992, and is now 17 years old. During the 1992-1993 and 1993-1994 school years, he was the subject of more than 70 disciplinary referrals to the principal's office, and was suspended on several occasions.

On December 8, 1993, the school district filed a petition with the Albany County Family Court to have Azarr declared a person in need of supervision (PINS). On January 11, 1994, the Family Court ordered an evaluation of Azarr by the Parsons Child and Family Center. That evaluation was completed on February 10, 1994 and concluded that immediate residential placement was unnecessary, urging instead that Azarr receive school-related counseling to prevent future probationary supervision. The evaluation further recommended dismissal of the PINS petition. Although the school district refused to withdraw the petition, its representatives failed to appear in court on February 16 for a hearing, and the PINS petition was dismissed. On April 20, 1994, petitioners served a notice of claim upon the school district based upon its filing of the PINS petition.

On May 20, 1994, further incidents occurred in which Azarr was late for class, was disruptive in class, and made inappropriate remarks to a teacher. By letter dated May 24, 1994, a superintendent's hearing was scheduled for June 2. Prior to the commencement of the evidentiary portion of that hearing, the parties reached an agreement to resolve the matter by referring Azarr to the Committee on Special Education. Although not reflected in the hearing transcript, it appears that after the hearing was adjourned, the parties agreed that respondent would provide Azarr with a seventh period learning laboratory where he would have a one-on-one remedial opportunity to prepare for final examinations.

The next day, June 3, Azarr was informed by the associate principal that arrangements for the seventh period learning laboratory had been completed, but Azarr failed to report for the learning laboratory on time because his bookbag had been misplaced. In an attempt to have him attend the learning laboratory, the associate principal assured Azarr that he would locate Azarr's bookbag. Azarr then became highly disruptive, refused to do any work, and attempted to leave the building. The associate principal called Azarr's grandfather, who came to get him.

On June 3, the principal and associate principal together signed a letter suspending Azarr from school for five days, from Monday, June 6, to Friday, June 10. Petitioners' attorney then sought a review of this matter by the superintendent, who upheld the suspension on July 1. The board of education subsequently upheld the suspension at a meeting on August 16. This appeal was commenced September 15, 1994. Although the record is not clear, it appears that Azarr served the suspension and returned to school on June 13.

Petitioners contend, among other things, that the suspension of their grandson was motivated by long standing animosity on the part of the associate principal, Mr. Rench, and in retaliation for their filing a notice of claim against the school district. They also claim that the suspension is evidence of pervasive racism in the school district. They claim that the school violated various procedural rules in initiating the suspension, and that the penalty is grossly disproportionate to the offense.

Respondent generally denies any wrongdoing and contends that the suspension, considering the anecdotal record of Azarr, was entirely justified.

The appeal must be sustained because the letter sent by the principal, Mr. Aldi, and the associate principal, Mr. Rench, to petitioners does not comply with 8 NYCRR '100.2(l)(4). The letter informs petitioners of the suspension and the reason for the suspension, but fails to provide the additional information required by regulation. In pertinent part, '100.2(l)(4) provides:

Education Law '3214(3)(d), which establishes the procedures that must be followed in cases of short term student suspensions of five days or less, states:

Respondent points out that the associate principal, Mr. Rench, was the complaining witness, and that he called Mr. Jones before the suspension occurred. Respondent argues that this opportunity to talk to Mr. Rench satisfied the requirements of the regulation. I disagree.

Although the full hearing procedures set forth in Education Law '3214(3)(c) do not apply to short term student suspensions, school districts are required to impose such discipline with fundamental fairness (see, e.g., Appeal of Danison, 31 Ed Dept Rep 169; Appeal of Forster, 31 id. 443; Appeal of Blish, 32 id. 171; Appeal of Allert, 32 id. 242). In the case of short suspensions, the minimum standard of fundamental fairness was partially codified by the adoption of '100.2(l)(4). The purpose of the regulation is to require that persons in parental relationship to a student who is suspended for a short term of five days or less are made aware of the statutory right provided in Education Law '3214(3)(d). That provision requires that persons in parental relationship have the opportunity, if they choose, to question the complaining witnesses in the presence of the principal who imposed the suspension in the first place, and who has the authority to terminate or reduce the suspension. It is insufficient to provide merely an opportunity to speak to the principal without the complaining witnesses present, or an opportunity to speak to the complaining witnesses without the principal present. The purpose of '3214(3)(d) is to allow the principal, at an early date and based upon the questioning in his presence, to decide whether his original decision to suspend was correct or should be modified. That opportunity was not present here, and I am therefore constrained to sustain the appeal (Appeal of Somers, 32 Ed Dept Rep 431; Appeal of Ferguson, 32 id. 494).

Although the appeal must be sustained on this basis, two other matters require some discussion. If respondent had properly complied with '100.2(l)(4), I would have dismissed this appeal. Based upon the record of this student, a suspension of five days for the disruptive behavior exhibited on June 3 would have been entirely justified, and there would be no basis to substitute my judgment for that of respondent (Appeal of Homick, 34 Ed Dept Rep 150; Appeal of Lewis, 33 id. 520). Although petitioner claims that the suspension was somehow racially motivated, these allegations are entirely unsubstantiated by anything in the record. Accordingly, they must be dismissed.

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the records of Azarr Johnson any reference to his suspension during the period of June 6 to June 10, 1994.

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