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Decision No. 13,860

Appeal of MARY PINCKNEY as legal guardian of KEISHA MILLER from action of the Board of Education of the Southampton Union Free School District regarding student suspension

Decision No. 13,860

(February 10, 1998)

Harriet A. Gilliam, Esq., attorney for petitioner

Richard S. Fernan, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner, the legal guardian of Keisha Miller, appeals the determination of the Board of Education of the Southampton Union Free School District ("respondent") to suspend Keisha and requests that the suspension be expunged from her record. The appeal must be sustained in part.

On the morning of March 11, 1996, Keisha was involved in an altercation with S.W. in the Southampton High School. The Interim Assistant Principal, Robert Barker, after hearing a commotion in the hall, observed the two students yelling at each other while separated by a teacher, Mr. Turnbull. Eventually, Mr. Barker managed to get Keisha into his office where he telephoned petitioner to take Keisha home. According to Mr. Barker, he and petitioner agreed that they would speak about the incident the following day. Petitioner, however, contends that Mr. Barker directed her to bring Keisha to his office the next day.

On March 12, petitioner and Keisha met with Mr. Barker, Mr. Turnbull, a school security officer and a social worker. According to Mr. Barker, this meeting was to review the basis for Keisha's suspension and to afford petitioner the opportunity to ask him questions. At the conclusion of the meeting, Mr. Barker informed petitioner that Keisha was suspended for five days, commencing March 11 through March 15, 1996. That same day, the principal, Dr. DeVincenzi, sent petitioner a letter "to confirm your conversation with the assistant principal today in the District Office concerning the suspension of Keisha for a period of five day(s), March 11 – March 15, pending a Superintendent’s hearing. The reason for this suspension is threatening bodily harm to students and staff, using obscenities, and displaying violent behavior."

Petitioner’s counsel requested and was granted an adjournment of the hearing from Friday, March 15 until Monday, March 18, due to a scheduling conflict. Keisha remained out of school until the hearing on the 18th. Superintendent Richard Malone presided over the hearing, at which four teachers, Mr. Barker and three support staff members testified for the district. Petitioner testified on her own behalf. Neither S.W. nor another support staff member, against whom Keisha allegedly had made a threat, testified. At the conclusion of the hearing, the superintendent heard from the principal regarding Keisha’s prior disciplinary record. The superintendent found Keisha guilty and continued Keisha’s suspension pending a complete medical and psychological examination. On March 28, 1996, the superintendent issued a decision suspending Keisha for the remainder of the school year. Petitioner appealed to respondent, who heard the appeal on April 23, 1996. On May 8, 1996, respondent affirmed the superintendent’s determination. This appeal ensued.

Petitioner asserts that Keisha’s suspension was illegal because Mr. Barker, the Interim Assistant Principal, lacked the authority to suspend Keisha under Education Law "3214. Petitioner contends that Mr. Barker failed to inform her that the March 12 meeting was in fact a suspension conference, and that she had the right to meet with the principal and question the complaining witnesses. Petitioner contends that she asked to speak with Dr. DeVincenzi, the principal, but was informed that the principal chose not to meet with her, even though Dr. DeVincenzi was apparently in the district offices. Petitioner further contends that accusations that Keisha had allegedly threatened another student were not included in the suspension notice or notice of hearing, and she was not informed of the alleged threat until the suspension hearing. Petitioner also maintains that Mr. Barker improperly extended the suspension an extra day when the hearing was adjourned. In addition, petitioner contends that the superintendent improperly considered Keisha’s disciplinary record before finding her guilty on the charges, considered items in the anecdotal record that should not have been considered, and rendered his decision on penalty without waiting for the medical and psychological examination results, as he stated he would do. Moreover, petitioner maintains that the evidence is contradictory and does not support a finding of guilt on the charges. Finally, petitioner asserts that respondent considered evidence outside the record in affirming the superintendent’s determination, and the district failed to provide Keisha with sufficient home instruction during her suspension.

Respondent disputes that the March 12 meeting with Mr. Barker was a suspension hearing. Respondent contends that the principal in her March 12 letter properly made the suspension. Also, respondent states that the suspension was not extended but rather the scheduled hearing date was adjourned to accommodate petitioner’s counsel. Respondent asserts that the record supports the superintendent’s determination, and that the penalty was appropriate, supported by a rational basis and not excessive.

Section 3214(3)(b) of the Education Law allows a suspension of up to five days to be imposed by a school principal. That section provides that:

The board of education, board of trustees, or sole trustee may adopt by-laws delegating to the principal of the district, or the principal of the school where the pupil attends, the power to suspend a pupil for a period not to exceed five school days. In the case of such a suspension by the principal, the pupil and the person in parental relation to him shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of the complaining witnesses (emphasis added).

Although the full hearing procedures for suspensions longer than five days set forth in Education Law "3124(3)(c) do not apply to suspensions of five days or less, school districts are nonetheless required to impose such discipline consistent with principles of fundamental fairness (Appeal of Duffy, 36 Ed Dept Rep 257; seealsoAppeal of Allert, 32 id. 242; Appeal of Blish, 32 id. 171; Appeal of Forster, 31 id. 443; Appeal of Danison, 31 id. 169). In the case of short-term suspensions under "3214(3)(b) where a principal suspends a student for five days or less, the minimum standard of fundamental fairness was partially codified by the adoption of 8 NYCRR "100.2(l)(4). That regulation provides in relevant part:

Where a student is suspended from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student has been suspended from school . . . Such notice shall provide a description of the incident(s) which resulted in the suspension and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(d) . . . (emphasis added). [Per amendments made effective July 26, 1995, former paragraph (d) was added to "3214(3)(b).]

The purpose of "100.2(1)(4) is to require that the parents of a student suspended for five days or less are made aware of the statutory right provided in Education Law "3214(3)(b) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension. This procedure affords the principal the opportunity to decide whether her original decision to suspend was correct or should be modified. 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 witness without the principal present (Appeal of Jones, 35 Ed Dept Rep 1).

In this case, respondent failed to comply with the statute and regulations in several respects. First, the interim assistant principal, Mr. Barker, admits in the hearing transcript that prior to the March 12 meeting with petitioner, Keisha had already been suspended. Thus, it appears that Mr. Barker, rather than the principal, Dr. DeVincenzi, improperly imposed the initial suspension on March 11. The statute clearly provides that the board of education may delegate the authority to suspend a pupil only to the building principal. The statute authorizes no further delegation of that authority.

Respondent argues alternatively that Dr. DeVincenzi, by virtue of her March 12 letter to petitioner, imposed the five-day suspension or "ratified" Mr. Barker’s actions. That letter stated in part:

This is to confirm your conversation with the assistant principal today in the District Office concerning the suspension of Keisha from school for a period of five day(s), March 11 – March 15, pending a Superintendent’s hearing.

The reason for this suspension is threatening bodily harm to students and staff, using obscenities, and displaying violent behavior.

I note that in Mr. Barker’s memorandum to the superintendent regarding this incident, dated March 14, he states that "after reviewing both girls’ histories, Dr. DeVincenzi and I recommended maximum suspensions of five days and hearings for both girls." This "review" took place before the March 12 conference with petitioner. It is unclear whether Dr. DeVincenzi actually authorized Mr. Barker to suspend Keisha (see, e.g., Appeal of Stewart, 34 Ed Dept Rep 193). However, it appears from her March 12 letter that Dr. DeVincenzi was not imposing the suspension, but that Mr. Barker, the interim assistant principal, had already done so at the conference. Because a suspension ordered by any school official other than the principal is illegal (Ross v. Desare, 500 F. Supp 928 (1980); Appeal of Caulfield, 18 Ed Dept Rep 574; Appeal of Sehr, 17 id. 45; Appeal of Corbett, 12 id. 184), Mr. Barker could not suspend Keisha.

Even if respondent’s position is correct, petitioner was still denied the opportunity to meet with the principal and question complaining witnesses in accordance with "3214(3)(b). Although respondent disputes it, the March 12 meeting with Mr. Barker was in essence a suspension conference. As Mr. Barker states in his March 14 memorandum to the superintendent, the meeting was "to review the basis for the suspension and to afford Ms. Pickney [sic] the opportunity to ask any questions of me." Petitioner should have been fully informed that this was a suspension conference, and this conference should have been held with Dr. DeVincenzi, not Mr. Barker, to allow Dr. DeVincenzi to decide whether the original decision to suspend was correct or should be modified. Although respondent denies that petitioner specifically requested to speak with the principal during the conference or requested any additional information, respondent admits that the principal was not present during this meeting. Accordingly, petitioner was denied the opportunity to meet with the principal.

In addition, although both Mr. Turnbull and Mr. Barker were present at the March 12 conference, it does not appear that petitioner was afforded the opportunity to question them. She certainly was not afforded the opportunity to question S.W. According to the chronology in Mr. Barker’s memorandum to the superintendent, the decision to suspend Keisha for five days had already been made prior to the March 12 meeting. Thus, it appears that petitioner was already deprived, prior to the hearing, of the opportunity to present information to the principal which might cause her to modify or reduce the suspension. Accordingly, the five-day suspension must be annulled and expunged from Keisha’s record (Appeal of Jones, 35 Ed Dept Rep 1).

Although the initial five-day suspension must be overturned, that does not entirely resolve the matter, because a subsequent superintendent’s hearing was held. By letter dated March 12, the superintendent ordered a hearing for March 15. That hearing notice listed the charges as:

  1. Threatening bodily harm to students and staff

2. Using obscenities

3. Displaying violent behavior.

and to determine whether or not said Keisha Miller was or is a minor who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others and whether or not any suspension or other disciplinary action is warranted.

Education Law "3214(3)(a)(1) authorizes a school district to suspend "a pupil who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others." However, the decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Catherine B., 37 Ed Dept Rep 34; Appeal of A.B., 36 id. 155; Appeal of Derosa, 36 id. 336; Appeal of Homick, 34 id. 150).

Petitioner argues that the witnesses offered conflicting and controverted accounts of Keisha’s alleged conduct and statements, and that there was no substantial, objective proof presented that Keisha was guilty of the charges. However, there was testimony from Mr. Barker, four teachers, and three support staff members about a fight between Keisha and S.W., attempts to separate them and bring them to Mr. Barker’s office, and the ensuing commotion in the office. Apparently, the situation was very tumultuous, with numerous people going in and out of the office, Keisha and S.W. continuing to shout at each other, and S.W. taunting Keisha. Nonetheless, after carefully reviewing the transcript and the written statements of the teachers and staff, there is no doubt that there was a fight between Keisha and S.W., that words were exchanged in the aftermath, and that in the midst of the tumult, Keisha, who was crying and upset, displayed violent behavior, used inappropriate and obscene language and made various threats, as charged. While some of the testimony is confusing, given the chaos surrounding the incident, such confusion does not negate the sufficiency of the evidence. There is testimony that Keisha fought with S.W., threatened S.W. (who did not testify), threatened Ms. Lee (the attendance officer), threatened Miss Johnson (a teacher), was insubordinate to the teachers who intervened, was insubordinate to Mr. Barker, was violent in the hall, was violent in the office, used obscenities against S.W., and used obscenities against the teachers, among other things. Thus, the hearing officer’s finding that "Keisha is a student who has been disorderly and in whose conduct otherwise has endangered the safety of others and is guilty of the charges" is supported by competent and substantial evidence. It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts on the record (Appeal of Bowen, 35 Ed Dept Rep 136; Appeal of Kittell, 31 id. 419). Here, the hearing officer’s findings are supported by the facts in the record. Accordingly, there is no basis to overturn his decision.

In the hearing transcript, counsel for petitioner objected to "the form of the charges which lack the specificity necessary for me to properly prepare defense in this case...." However, petitioner does not raise this issue in the petition. Nonetheless, in the instant case before me, the charges contained a delineation of the actions of which Keisha was accused, namely, threatening bodily harm to students and staff, using obscenities, and displaying violent behavior. Although the charges could have been particularized with more specificity, I am mindful of the Court of Appeals’ recent direction articulated in Matter of Board of Education of Monticello Central School District v. Commissioner of Education, et al. (___ NY2d ___, 1997 WL 749489 (N.Y.), 12/2/97). In that case, the Court stated:

. . .In essence, students are entitled to fair notice of the charges against them so that they can prepare and present an adequate defense (Matter of Block v. Ambach, 73 NY2d 323, 332; Matter of Fitzgerald v. Libous, 44 NY2d 660, 661; Matter of Curtis, 16 Educ Dept Rep 15, 17).

. . .The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" Matter of Rose, 10 Educ Dept Rep at 5, supra). As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served.

Given the totality of the circumstances and the date of Dr. DeVincenzi’s letter, a reasonable person could easily determine the misconduct that was the genesis for the charges in this case sufficient to prepare an effective defense. Indeed, prior to the hearing, petitioner’s counsel had received copies of all available witness statements. Those statements contained S.W.’s name as well as the names of teachers, staff and administrators involved. Moreover, petitioner’s counsel had the opportunity to cross-examine all eight of respondent’s witnesses, and present a defense. Clearly, Keisha had a fair opportunity to tell her side of the story and rebut the evidence against her.

Moreover, contrary to petitioner’s claim, the hearing transcript reveals that the superintendent properly made his determination on the issue of guilt prior to hearing evidence about Keisha’s anecdotal record. With regard to petitioner’s claim that the suspension was extended beyond five days, it is well settled that where a hearing is timely scheduled, but adjourned at the parent’s request, the five-day requirement is vitiated (Appeal of Bajardi, 33 Ed Dept Rep 371; Appeal of Wehner, 22 id. 661).

I must note several other issues. The superintendent originally directed that an updated psychological and psychiatric examination of Keisha be conducted which would be considered in the final determination of penalty. Petitioner declined consent for this examination and apparently the examination never took place. Moreover, the superintendent issued his determination to suspend Keisha for the remainder of the school year on March 28, without waiting for any such reports. Nonetheless, I must remind respondent that it is not permitted to order a psychological examination as part of a penalty for a suspension. If respondent determines that such an examination is warranted, the proper avenue is to refer the pupil to respondent’s Committee on Special Education (CSE) for evaluation (see, e.g., Appeal of a Student with a Disability, 35 Ed Dept Rep 17).

Finally, I remind respondent that it is obligated to provide adequate alternate instruction to a suspended student of compulsory attendance age in accordance with "3214(3)(e) (Appeal of Sandra L. 37 Ed Dept Rep 197; Appeal of Bridges, 34 id. 232; Appeal of Kulik, 21 id. 567; seealso 8 NYCRR "175.21).

I have considered the parties’ remaining arguments and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of Keisha Miller from March 11–15, 1996, be annulled and expunged from her record.

END OF FILE