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Decision No. 14,253

Appeal of DEBORAH TOOLEY, on behalf of her son MICHAEL WIDGER, from action of the Board of Education of the Liverpool Central School District regarding student discipline.

Decision No. 14,253

(November 24, 1999)

Edward Luban, Esq., attorney for petitioner

O'Hara & O'Connell, attorneys for respondent, Dennis G. O'Hara, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Liverpool Central School District ("respondent"), concerning the suspension of her son, Michael Widger, on May 7, 1998. The appeal must be sustained in part.

On May 7, 1998, Linda Spencer, the Assistant Principal of Liverpool High School, sent a letter to petitioner advising her that Michael was suspended from Liverpool High School for five days for fighting. The days of suspension were specified as May 8, 11, 12, 13 and 14, 1998. The May 7, 1998 letter did not contain notice of a superintendent's hearing, nor did it advise petitioner that she could request an informal conference with the principal at which she could question the complaining witnesses. Ms. Spencer spoke to petitioner by telephone on or about May 8, 1998. Ms. Spencer explained that she would schedule a superintendent's hearing, and advised petitioner that she would recommend at the hearing that Michael be placed in an alternative educational program at the Zogg Administrative Building ("Zogg").

On May 12, 1998, Ms. Spencer sent another letter to petitioner, advising that Michael was suspended for five days for fighting, but the days of suspension were specified as May 15, 18, 19, 20 and 21, 1998. The May 12 letter also contained notice of a superintendent's hearing, scheduled for May 20, 1998, and stated that such hearing was mandatory before Michael could return to school. There was a handwritten notation on the letter, presumably made by Ms. Spencer, stating that she had already discussed this matter with petitioner, that Michael would commence an alternative instruction program at Zogg on Monday, May 18, 1998, and that petitioner would not be attending the hearing. Although the letter is dated May 12, 1998, the record indicates that the handwritten notation refers to a telephone conversation that took place on or about May 14, 1998, during which Ms. Spencer understood that petitioner was waiving the superintendent's hearing and accepting Michael's placement in the Zogg program. Petitioner, however, denies that she agreed to waive the hearing and Michael's placement in Zogg.

By letter dated May 20, 1998, petitioner asked the hearing officer, Robert Kolch, to adjourn the hearing so that she could review the case with an attorney. Petitioner also noted that Michael was not receiving instruction in two of his classes, band and technology. Mr. Kolch responded the same day to the faxed request, agreeing to postpone the hearing. Mr. Kolch noted his understanding that Michael had transferred to the group tutorial program at Zogg, and stated that Michael would continue at that placement pending the hearing and a determination by the superintendent.

Petitioner retained counsel, Edward Luban, who requested on June 9, 1998 that the hearing be rescheduled. Mr. Luban also sent a letter dated June 15, 1998, requesting that the district rescind Michael's suspension and provide him with appropriate alternative instruction. The letter outlined several objections to the hearing, and specifically noted that Michael was not receiving instruction in band and technology. Mr. Luban requested notification of what the district intended to do to enable Michael to complete those courses by the end of the school year. The record does not reflect any response to either letter.

In July 1998, petitioner received Michael's final report card. The report card contained no grade for the fourth marking period in Michael's technology course but noted a final examination grade and one-half credit for the yearlong course. The concert band course indicated a fourth marking period grade of 50, but Michael was given a 0 for his final exam, no credit for the course, and the report card noted that "music lessons were not made up." There was no entry for current absences in either course, although all other courses had absentee entries.

On July 16, 1998, Mr. Luban advised the district's attorney that he had received no response to either his June 9 or June 15, 1998 letters, and advised that his client would take legal action if there was no response within 5 days. The record does not reflect any response to the letter, and this appeal ensued. Petitioner's request for interim relief was granted on August 27, 1998, and respondent was directed to readmit Michael pending a superintendent's hearing and determination concerning suspension. The record indicates that a superintendent's hearing was subsequently held on September 9, 1998, resulting in a decision to suspend Michael for the entire 1998-99 school year. This decision was purportedly appealed to respondent, but the results of that appeal are not part of the record before me and petitioner has not sought to include the proceedings at the superintendent's hearing in the instant appeal.

Petitioner contends that Assistant Principal Spencer had no authority under Education Law "3214 to suspend Michael, and that the May 7, 1998 letter did not advise petitioner that she could request an informal conference at which she could question complaining witnesses, as required by "100.2(1)(4) of the Commissioner's Regulations. Petitioner further contends that respondent improperly suspended Michael on May 12, 1998 for an additional 5 days without a hearing, failed to provide him with appropriate alternative instruction, denied him academic credit and lowered his grades for work he missed while suspended, and did not give him an opportunity to make up work he missed. Petitioner seeks a declaration that the May 7 and May 12 suspensions were illegal, expungement of Michael's records, revision of Michael's grades, and full academic credit for the technology and band courses.

Respondent denies that the May 7, 1998 suspension and subsequent actions were improper, or that Michael was suspended for any period other than May 8, 11, 12, 13 and 14, 1998. Specifically, Ms. Spencer states in an affidavit that her May 12, 1998 letter incorrectly listed the wrong dates (i.e., May 15, 18, 19, 20 and 21, 1998) and that Michael had only been suspended for 5 days commencing May 8, 1998. Respondent further asserts that petitioner waived her right to a superintendent's hearing and consented on May 14, 1998 to transfer Michael to the Zogg alternative instruction program in lieu of disciplinary proceedings, that the procedures followed by the district complied with Education Law "3214 and "100.2 of the Commissioner's Regulations, and that the alternative education received by Michael was substantially equivalent to the classroom instruction he was receiving. Respondent also raises two procedural objections, that petitioner failed to appeal the suspension to the board of education and thus failed to exhaust administrative remedies, and that the petition is untimely.

I will first address the procedural objections. Respondent contends that, under Education Law "3214(3)(c), petitioner was required to exhaust administrative remedies by appealing the May 7, 1998 suspension to the board of education prior to commencing an appeal under "310 of the Education Law. Respondent is correct that a petitioner must first exhaust administrative remedies by appealing the result of a superintendent's hearing and determination to the board of education before commencing an appeal to the Commissioner (Appeal of Student Suspected of Having a Disability, 38 Ed Dept Rep 332, Decision No. 14,047; Appeal of Gielowski, 33 id. 476, Decision No. 13,119). However, respondent contends that Ms. Spencer only suspended Michael for 5 days, i.e., May 8, 11, 12, 13 and 14, 1998, and the results of the superintendent’s hearing are not before me in this appeal. It has recently been clarified that, unless a board of education has adopted local policy to the contrary, suspensions of 5 days or less do not require an appeal to the board before initiating an appeal under Education Law "310 (Appeal of Amara S., 39 Ed Dept Rep ___, Decision No. 14,182). The record does not reflect that respondent has adopted such a policy in this case. Therefore, to the extent petitioner challenges her son's suspension on May 8, 11, 12, 13 and 14, 1998, I will not dismiss the appeal for failure to exhaust administrative remedies.

Respondent is also correct that an appeal to the Commissioner must be initiated within 30 days of the decision that is the subject of the appeal (8 NYCRR "275.16; Appeal of Prentice, 38 Ed Dept Rep 736, Decision No. 14,130; Appeals of Lombardo, 38 id. 730, Decision No. 14,128). However, this appeal presents a very confusing procedural posture, with contradicting allegations regarding the length of the suspension, whether petitioner waived a hearing and consented to Michael's transfer to an alternate educational program, or whether a hearing should have been scheduled in accordance with Mr. Luban's requests in June 1998. Petitioner apparently reasonably believed, based on respondent's actions, that a hearing would be scheduled at which she could present her objections to the suspension and alternative education program. Thus, under the unique circumstances of this appeal, I decline to dismiss the petition as untimely (8 NYCRR "275.16).

The appeal must be sustained in part on the merits. While a board of education is authorized to delegate the authority for a school principal to suspend a student from school, such authority may not be delegated to an assistant principal (Education Law "3214[3][b]; Ross v. Desare, 500 F.Supp. 928 [S.D.N.Y. 1977]; Appeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860; Appeal of Caulfield, 18 Ed Dept Rep 574, Decision No. 9,973). Assistant Principal Spencer thus had no authority to suspend Michael, and the record is devoid of any proof that the May 7, 1998 suspension was ordered by anyone other than Ms. Spencer. I, therefore, find that the initial five-day suspension on May 7, 1998 violated Education Law "3214.

In addition, the May 7, 1998 letter failed to advise petitioner that she had the right to an informal conference with the principal. 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 parent may ask questions of the complaining witnesses. Notice of the right to request an informal conference is required under 8 NYCRR "100.2(l)(4). It is undisputed that the May 7, 1998 letter did not give petitioner notice of the right to an informal conference. Failure to offer the opportunity for such a conference with the principal requires that I sustain the appeal with respect to the initial 5-day suspension (Appeal of Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Jones, 35 Ed Dept Rep 1, Decision No. 13,444). Respondent should review its suspension letters, to ensure that the letters contain the notices mandated by the Education Law and Commissioner's regulations.

As to the claim that Michael was suspended for more than 5 days without a hearing, Ms. Spencer sent petitioner a second letter on May 12, 1998, noting that Michael was suspended for five days - May 15, 18, 19, 20 and 21 - for fighting. Respondent asserts that these dates were incorrect, that the suspension was only for the dates specified in the May 7, 1998 letter - May 8, 11, 12, 13 and 14 - and that as of May 18, 1998 Michael would be transferred into the Zogg program per petitioner's consent. However, petitioner claims that no one ever told her that the dates in the May 12 letter were incorrect or that Michael's suspension ended as of May 14, 1998, and respondent presents no proof that anyone ever advised petitioner that the dates in the May 12, 1998 were inaccurate. Petitioner further disputes that she consented to Michael's transfer into the Zogg program. She states that she thought this alternate program was the only way Michael would receive an education from the district, and thought there was no option but to send Michael to Zogg. She agrees that she told Ms. Spencer she would not attend the superintendent's hearing, because she thought the case had already been decided.

The record supports a finding that, at the very least, Michael was suspended for a sixth day, May 15, without a hearing. Ms. Spencer's May 12, 1998 letter stated that a superintendent's hearing was mandatory before Michael could return to school, and the handwritten note on the letter indicated that the alternative educational program at the Zogg building would not commence until May 18, 1998. Michael was thus not permitted to return to classes at Liverpool High School on May 15, 1998. Although respondent contends that Michael did not appear at Zogg on May 15, 1998 "as he had been directed to," there is no evidence whatsoever in the record to indicate how or when the district allegedly directed Michael to appear at Zogg any earlier than May 18, 1998. This sixth day of suspension, without the opportunity for a hearing, violates "3214(3)(b).

I further find that respondent failed to take immediate steps to provide alternative instruction during the 6-day suspension (Education Law "3214[3][e]; Turner v. Kowalski, 49 AD2d 943 [2d Dept 1975]; Appeal of Bridges, 34 Ed Dept Rep 232, Decision No. 13,291; Appeal of Warner, 32 id. 533, Decision No. 12,907). A school district may not restrict alternative instruction in the case of short suspensions, and must act reasonably promptly to provide alternative instruction regardless of the length of the suspension (Appeal of Bridges, supra). There is no showing in the record that any attempt was made to provide alternative instruction for Michael until May 18, 1998, nor does respondent dispute that Michael is of compulsory attendance age and that such alternative instruction is mandated by law.

Petitioner further claims that respondent failed to provide appropriate alternative education for Michael's band and technology courses, denied him academic credit, lowered his grades for work he missed while suspended, and did not give him an opportunity to make up work he missed. Petitioner requests that Michael's grades be revised to reflect performance for the course work he was given the opportunity to complete. Respondent contends that the alternative education was substantially similar to Michael's classroom instruction, although it admits that the Zogg program did not teach band or technology classes, and asserts that Michael's final grades reflected his actual performance in the two courses.

The record is not clear as to what steps were taken by the school district or Michael to complete his studies for the school year. Although respondent concedes that instruction in the band and technology courses was not provided at the Zogg program, Michael's final report card nevertheless reflects a final exam grade for the technology course and a final marking period grade for the band course. Neither party provides an explanation for such grades, nor does either party establish the basis upon which either grade was awarded. Similarly, although petitioner claims that respondent did not give Michael the opportunity to make up work missed during the suspension, the letters from Ms. Spencer clearly directed Michael to obtain his assignments and work from his teachers, and there is no showing by petitioner that Michael took any steps to make up the work from the period of suspension or during the time he was in the Zogg program. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). Petitioner has not sustained her burden to establish that she is entitled to a revision of Michael's grades.

I also note that it is not clear whether the Zogg program was intended by respondent to be an alternative instruction program during a period of suspension, or a different educational setting or program to which Michael was permanently transferred pursuant to Education Law "3214[5], and there is a dispute as to whether petitioner agreed to such transfer. In any event, petitioner had the right to request a hearing regarding such transfer, even if the parent consents to the transfer, and to appeal the transfer to the board of education (Education Law "3214[5][d]). As noted earlier, I have not been provided with information as to what issues were addressed at the September 1998 superintendent's hearing or petitioner's appeal to the board. In the absence of an appeal from a decision by respondent related to the transfer, petitioner has failed to exhaust administrative remedies.

Although I am constrained to dismiss this portion of the petition, I note that a proposal for involuntary transfer of a student to an appropriate educational setting in another school or facility should only be initiated in accordance with the procedures established in Education Law "3214(5). Respondent should review its procedures for making transfer recommendations to ensure that they comply with the Education Law. The parties have not presented any evidence regarding the proceedings at the superintendent's hearing or the subsequent appeal, and I have thus not addressed issues that would properly have been raised at the hearing.

However, it is clear that the misunderstanding as to whether petitioner had waived her right to a superintendent's hearing caused much of the confusion in this matter. If respondent seeks to accept a parent's waiver of a due process hearing, respondent's procedures should precisely comply with the guidelines set forth in Appeal of McMahon, 38 Ed Dept Rep 22, Decision No. 13,976, to ensure that such waivers are voluntary, knowing and intelligent. Respondent should review its procedures concerning the provision of notice of the right to a superintendent's hearing and waiver of such hearing, to ensure that they comply with the Education Law and Commissioner's regulations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's suspension of petitioner's son from May 8 to May 15, 1998 be annulled and expunged from his record.

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