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Decision No. 14,059

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the East Williston Union Free School District regarding student suspension.

Decision No. 14,059

(December 23, 1998)

Jaspan Schlesinger Silverman & Hoffman, LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., and Jay S. Hellman, Esq., of counsel

Petitioners appeal the decision of the Board of Education of the East Williston Union Free School District ("respondent") affirming their son's suspension and request that the suspension be expunged from his record. Petitioners also request a complete investigation as to the fitness of the complaining witness to continue to be employed as a coach. The appeal must be sustained in part.

On March 17, 1997, the principal of the school where petitioners' son attended eleventh grade suspended the student for five days for possessing and consuming alcohol. The incident occurred on March 14, 1997 in a hotel room where members of the high school basketball team gathered after playing in a school-related tournament.

After meeting with the student, who admitted to the conduct, the principal telephoned petitioners and advised them of the suspension. The principal met with the petitioners and their son on March 18, 1997. After discussing the student's conduct and the reasons for his suspension, petitioners sought to speak with the basketball coach who originally reported the incident and identified the student as a participant. The principal denied the request based on the student's admission and the belief that petitioners intended to question the coach on his alleged failure to adequately supervise the students, and not to question him with regard to the student's guilt or innocence. By letter dated March 21, 1997, the principal provided petitioners with "a written record of our conference," confirming the five-day suspension commencing March 18 through March 24, 1997 for violation of the district's policy concerning the possession and use of alcohol by students.

On May 27, 1997, petitioners appealed their son's suspension to the superintendent, who upheld the decision. Petitioners subsequently appealed to respondent board of education and were heard on July 14, 1997. By letter dated August 5, 1997, petitioners were advised of respondent's denial of their appeal, as well as their right to appeal the decision to the Commissioner. On September 2, 1997, petitioners commenced this appeal. On September 9, 1997, I denied petitioners' request for a stay.

Petitioners seek an order expunging from their son's record any reference to the suspension which they contend was imposed without proper notice and opportunity to confront and question the complaining witness. Petitioners also request a complete investigation as to the fitness of the basketball coach to continue in his position. Respondent admits that it did not provide petitioners with written notice of their son's suspension but asserts that it fully complied with the district's which require either oral or written notice. Respondent further admits that petitioners were not permitted to confront or question the coach who was the complaining witness, but asserts that, based on the student's statement that he consumed alcohol in the hotel room, the principal would not have modified his original determination even if the witness had been questioned. In addition, respondent contends that petitioners have no standing to insist on an investigation of a particular staff member.

Education Law "3214(3)(b) provides that, in the case of a suspension by a principal not to exceed five days, the student and his parents "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." Notice of the right to request an informal conference is required under 8 NYCRR "100.2(l)(4):

(4) Parental notice of student suspensions. 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 persons in parental relation in writing that the student has been suspended from school. Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension… (emphasis added)

The purpose of "100.2(l)(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 his 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 Milano, 37 Ed Dept Rep 472; Appeal of Pinckney, 37 id. 284; Appeal of Jones, 35 id. 1).

In this case, respondent failed to comply with the statute and regulations in more than one respect. First, respondent did not immediately notify petitioners in writing that their son had been suspended from school. Respondent's reliance on "5114 of its own policy, which permits the principal to "notify the student orally or in writing," is misplaced because the policy itself is in violation of the written notice requirement in "100.2(l)(4) of the Commissioner's Regulations. Although the principal informed petitioners of the suspension by telephone, notification by telephone is required by "100.2(l)(4) in addition to written notice, where possible, and not as a substitute (Appeal of Milano, supra).

Second, respondent denied petitioners' explicit request to confront and question the complaining witness. Respondent's belief that such questioning was unnecessary because it would not have altered the outcome cannot excuse its noncompliance with the clear language of both statute and regulation. In this case, petitioners were never offered the opportunity to ask questions of the complaining witness.

Accordingly, the suspension must be annulled and expunged from the student's record (Appeal of Milano, supra; Appeal of Pinckney, supra; Appeal of Jones, supra). In addition, to the extent "5114 of respondent's policy is inconsistent with "100.2(l)(4), it is invalid and unenforceable.

Petitioners' request for an investigation of the complaining witness must be denied for failure to join him as a necessary party. The rights of this individual would be adversely affected by a determination in petitioners' favor regarding the relief they seek against him. Accordingly, he is a necessary party to this appeal and should have been named and served with a copy of the notice and petition. Inasmuch as petitioners failed to join him as a party, those claims directed against him must be dismissed (Appeal of Andela, 38 Ed Dept Rep 249; Appeal of Basil, 37 id. 568). Moreover, even if petitioners properly joined him as a party, these claims must be dismissed because an appeal to the Commissioner of Education pursuant to Education Law "310 is appellate in nature and does not provide for investigations (Appeal of Zile and Crowell, 37 Ed Dept Rep 213; Appeal of Distefano, 36 id. 217; Appeal of Vitek, 26 id. 345. The determination of whether to investigate an employee and take disciplinary action is within the discretion of the board of education so long as it has a reasonable basis (Appeal of Rivenburg, 35 Ed Dept Rep 27; Appeal of Allert, 32 id. 538; Appeal of Mitzner, 32 id. 15; Appeal of Magee, 30 id. 479). The record indicates that school administrators addressed the matter but that no appeal was taken to the board from that action.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's suspension of petitioners' son from March 18 through March 24, 1997, be annulled and expunged from his record; and

IT IS FURTHER ORDERED that "5114 of respondent's student discipline policy is declared void to the extent it does not comply with 8 NYCRR 100.2(l)(4) and that respondent modify the district's policy consistent with this decision.

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