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Decision No. 13,523

Appeal of RICHARD WINCHELL on behalf of his son, DAVID, from action of the Board of Education of the Fort Ann Central School District, regarding student discipline.

Decision No. 13,523

(December 5, 1995)

Bernadette M. Hollis, Esq., attorney for petitioner

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin D. Auffredou, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals his son David's suspension from extra- curricular activities by the Board of Education of the Fort Ann Central School District ("respondent"). Petitioner previously asked that David's suspension be stayed pending a final determination of this appeal, and that request was granted. The appeal must now be dismissed.

In the fall of the 1994-95 school year, David was involved in improper conduct in the boys' locker room after a junior varsity soccer game. The principal investigated that matter and subsequently suspended David from school for five days and from the soccer team for the remainder of the season and placed David on probation for three months from November 1994 through January 1995. On or about January 5, 1995, David's social studies teacher, Mrs. Hunter, informed the principal that a student had written offensive statements about her in a notebook. The principal's investigation revealed that although the notebook belonged to one student, four other students, including David, had access to the notebook on or about January 5, 1995. The principal interviewed all five students but none admitted responsibility for the statements. Mrs. Hunter contacted the local sheriff's department. The principal gave the notebook to the sheriff's department and the sheriff's department obtained writing samples of all five students. The sheriff's department sent the notebook and writing samples to the New York State Police for a handwriting analysis.

On February 22, 1995 petitioner met with the principal. The principal and petitioner discussed possible disciplinary measures, including suspension from extracurricular activities, if it were determined that David wrote the improper comments. On or about March 7, 1995, petitioner, his wife, David and the principal met again. Petitioner subsequently met with the principal and representatives from the Washington County Department of Social Services, who were assigned to a pending matter in Washington Family Court, which related to the same incident. The New York State Police crime lab concluded the handwriting analysis and determined that David was the author of the inappropriate language. On or about June 6, 1995, the principal informed petitioner that he had obtained a copy of the state police's handwriting analysis. On June 19, 1995, the principal informed petitioner that he had determined that David was the author of the inappropriate language and that he would be prohibited from participating in or attending all extracurricular activities from September 1, 1995 until January 31, 1996. This appeal followed.

The procedures set forth in Education Law '3214 do not apply to suspension from extracurricular activities (Appeal of Danison, 31 Ed Dept Rep 169; Matter of Watts, 23 id. 459). 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 Forster, 31 Ed Dept Rep 443; Appeal of Danison, supra; Matter of Watts, supra; Matter of Moore, 22 Ed Dept Rep 180).

Upon review of the facts, I find that the procedures followed in the principal's suspension of David from extracurricular activities were fair. The record demonstrates that prior to the imposition of the suspension, petitioner met with the principal on three separate occasions and had an opportunity to discuss the conduct and possible discipline. Moreover, petitioner also had a telephone conversation with the principal subsequent to the receipt of the handwriting analysis and before the imposition of the suspension. Accordingly, in view of the totality of the circumstances surrounding this suspension, I find respondent met its obligation to give the student and his parents a fair opportunity to discuss the conduct being reviewed.

Petitioner's contentions relating to respondent's release of school records to the police without petitioner or David's consent are essentially assertions of a violation of the Family Educational Rights and Privacy Act ("FERPA", 20 U.S.C. '1232g). Alleged violations of the FERPA are solely enforceable by the United States Secretary of Education, and not the Commissioner of Education (Appeal of Danison, supra; Appeal of Irwin, 23 Ed Dept Rep 221). Accordingly, I cannot decide petitioner's FERPA claims.

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

THE APPEAL IS DISMISSED.

END OF FILE