Decision No. 14,199

(August 24, 1999)

MILLS, Commissioner.--Petitioners challenge the two and one-half day suspension of their daughter, Melinda, and request that the Board of Education of the Bainbridge-Guilford Central School District ("respondent") be directed to expunge the suspension from Melinda's record. The appeal must be sustained in part.

On April 14, 1998, Melinda was suspended from school for two and one-half days for her involvement in a physical altercation with another student. Petitioners received written notice of the suspension by letter dated April 14, 1998, and were also notified by telephone of the incident. The notice contained the following description of the incident which resulted in the suspension:

Pursuant to Education Law "3214(b), petitioners requested an informal conference, which was held on April 17, 1998.

The Middle School principal and the teacher who witnessed part of the incident attended the conference along with petitioners, their daughter, and Kathryn R., the student’s grandmother. Petitioners requested any written statements taken from other students at the time of the incident. They were informed that no other written statements had been taken. Petitioners also requested a written statement from the other student who was involved in the incident. No such statement was offered at the informal conference.

On April 28, 1998, petitioners received notice that Melinda would not be allowed to attend a school dance on May 1, 1998, as the school's policy was to bar the attendance of a suspended student from any after school activity during the suspension and for two weeks thereafter. This appeal ensued.

Petitioners contend they were denied the opportunity to question all of the complaining witnesses. They also claim that the teacher who witnessed the altercation, Ms. Cifone, did not witness the start of the fight, nor did she observe Melinda hit the other student's head into the table. Petitioners claim that this allegation came from other students who witnessed the incident. Petitioners maintain they were not permitted to question these students. Finally, petitioners claim that respondent improperly barred Melinda from the May 1 dance.

Respondent contends that both the two and one-half day suspension and the suspension from the dance were appropriate. Respondent maintains that Ms. Cifone was the complaining witness as she observed the fight and made the referral to the principal. Respondent contends that petitioners had sufficient opportunity to question Ms. Cifone, the complaining witness, at the informal conference and thus were afforded sufficient due process. In addition, respondent maintains that in her written statement Melinda admitted pushing the other student into the table. Finally, respondent maintains the appeal must be dismissed as untimely and for failure to exhaust administrative remedies.

I will first address the procedural issues raised by respondent. An appeal to the Commissioner of Education must be initiated within 30 days of the decision that is the subject of the appeal unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent contends that petitioners commenced this appeal on May 15, 1998, more than 30 days from April 14, 1998, when petitioners received notice that their daughter had been suspended from school. However, the informal conference did not take place until April 17, 1998 and this appeal was filed within 30 days of that event. Because the appeal was only one day late, and petitioners commenced the appeal within 30 days of the informal conference, I find the one day delay to be de minimus. Accordingly, I will not dismiss the appeal as untimely.

The second procedural issue raised by respondent is petitioners’ failure to exhaust administrative remedies by neglecting to appeal the principal’s decision to the board of education. Education Law "3214 does not require exhaustion for suspensions of five days or less (Appeal of Amara S., 39 Ed Dept Rep ____, Decision No. 14,182). Accordingly, I will not dismiss for failure to exhaust administrative remedies.

The procedures governing the 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 Somers, 32 Ed Dept Rep 431, Decision No. 12,877; Appeal of Allert, 32 id. 242, Decision No. 12,819; 8 NYCRR "100.2[1][4]). Additionally, Education Law "3214(3)(b) provides that in suspensions of five days or less:

The record establishes that at the informal conference, petitioners met with the principal and Ms. Cifone, who witnessed at least a portion of the incident in question. According to the record, Ms. Cifone saw Melinda hit the other student and "saw black hair flying." The record also contains a written statement by petitioners’ daughter that she pushed the other girl twice, after first being pushed by that student. Thus, I find there is sufficient evidence in the record to warrant the two and one-half day suspension imposed by the principal.

However, I note there is insufficient evidence in the record to support the statement in the suspension notice that "Melinda took the student by the hair and hit the student's head into the table." Petitioners claim this allegation came from other students who witnessed the incident but who were not available at the informal conference. Although respondent denies this claim, there is no evidence of the source of the statement. Although Melinda admits in her statement to pushing the student into a table, she does not admit hitting the student's head into the table. Accordingly, the reference to the head hitting should be stricken from the suspension notice.

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

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent amend Melinda'srecords to delete the following language from the notice of suspension, "Melinda took the student by the hair and hit the student’s head into the table."

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