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Decision No. 14,303

Appeal of JAMES and DONNA LLOYD, on behalf of their son, PATRICK, from action of the Board of Education of the Valley Central School District regarding student discipline.

Decision No. 14,303

(February 11, 2000)

Garrett L. Silveira, Esq., attorney for petitioners

Donoghue, Thomas, Auslander and Drohan, attorneys for respondent, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Valley Central School District ("respondent") affirming the two-day suspension of their son, Patrick. The appeal must be sustained in part.

During the 1998-99 school year, Patrick attended the eighth grade at respondent's middle school. On June 17, 1999, while Patrick was riding to school on the school bus, he discussed the movie "Speed" with friends. Patrick quoted a line from the movie, stating "there's a bomb on the bus." Although he was sitting in the rear of the bus, the bus driver apparently overheard the statement and directed Patrick to come to the front of the bus and repeat what he said. There is disagreement in the record as to whether Patrick immediately complied, but all parties agree that Patrick came to the front and repeated "there's a bomb on the bus." There is further disagreement as to the remainder of the conversation with the bus driver. Respondent contends that Patrick did not explain to the bus driver that he was merely repeating a line from a movie. However, petitioners and Patrick maintain that he told the bus driver that the statement was only a quote and had been made during a discussion of a movie. There is also a dispute as to whether Patrick became very upset and started shouting, or whether he just sat in the front seat.

The bus driver contacted the dispatcher, relayed her understanding of the incident and requested instructions. After several minutes, the dispatcher responded and directed her to stop the bus and evacuate the students. The bus driver did so near the entrance to the middle school. John Hunter, the middle school principal, and the police arrived at the scene, and Patrick told them that he had been quoting a line from the movie "Speed."

Mr. Hunter asked the other students on the bus to write statements about the incident. Virtually all of the 24 students interviewed agree that Patrick made the statement about a bomb on the bus, and half of them specifically state that the comment was made in the context of discussing a movie. Although only one student states that Patrick repeated the statement to the bus driver (which is an uncontroverted fact), two students state that Patrick told the bus driver that he was just quoting a line from a movie (which is a point of contention between the parties). The other statements do not address what Patrick and the bus driver said to each other.

Mr. Hunter told Patrick that he would be suspended for five school days for bus-related misbehavior. Mr. Hunter then spoke to petitioners to advise them of the incident and the suspension. After receiving the bus driver's report and after further discussion with the superintendent, the suspension was modified to two days, with bus riding privileges suspended for the remainder of the school year. On the same day, June 17, 1999, Mr. Hunter began to draft a suspension notice letter to petitioners, but did not complete it before the end of the day. The superintendent had, in the interim, spoken with petitioner James Lloyd, advising him of the modified suspension. The superintendent also asserts that he spoke to Mr. Lloyd by telephone on June 18, 1999, and advised him of the right to request an informal conference at which he could question complaining witnesses. Petitioners deny that they received notice of the right to an informal conference prior to June 21, 1999.

Mr. Hunter was absent on Friday, June 18, due to illness, and the notice letter was not finalized and mailed until Monday, June 21, 1999, although the letter retained the date of June 17. In the letter, the principal advised that Patrick was being suspended because he had "endangered the health, safety, and welfare of others" when he stated that there was a bomb on the bus. This letter also noted that an informal conference was scheduled for June 24, 1999.

The bus driver, her supervisor, the principal and the superintendent attended the informal conference, which was summarized in a letter dated June 30, 1999. The letter noted that the disciplinary action came as a result of the bomb statement and Patrick's "failure to cooperate with the bus driver." The superintendent denied petitioners' request to annul the suspension and expunge all references from Patrick's records, or to issue an apology to Patrick. Petitioners appealed the suspension to respondent, which affirmed the decision at its July 14, 1999 meeting. This appeal ensued.

Petitioners assert that respondent failed to provide a timely written suspension notice informing them that they had the right to an informal conference at which they could question complaining witnesses; that the suspension for the alleged "bomb threat" is not based upon substantial evidence; and that Patrick was actually suspended for his alleged failure to cooperate with the bus driver's directions, although this charge was not included in Mr. Hunter's suspension notice mailed on June 21, 1999. Petitioners request that I reverse the suspension determination, order respondent to expunge any reference to the suspension from Patrick's records, and direct respondent to send Patrick a written apology. Respondent denies petitioners' claims, and asserts that the school gave due and timely notice as required by law; that there is competent and substantial evidence that Patrick had engaged in objectionable conduct; and that the Commissioner lacks jurisdiction to order an apology.

Respondent correctly notes that I have no jurisdiction to order the board or any school district employees to issue an apology to Patrick. There is no legal basis for demanding such relief (Appeal of Basil, 37 Ed Dept Rep 568, Decision No. 13,929). Moreover, petitioners are, in effect, asking that I engage in some form of discipline against the board or school district employees. I have previously held that it is the board of education that has the authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (Appeal of Basil, supra).

Petitioners' challenge to the timeliness of the notice of suspension and right to an informal conference, however, must be sustained. Education Law "3214(3)(b) provides that, in the case of suspension by a principal for a period 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 the Regulations of the Commissioner of Education, which provide that 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 (8 NYCRR "100.2[l][4]).

In this case, respondent's administrators did not use the methods of delivery required by "100.2[l][4], i.e., personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension imposed. It is undisputed that although the notice letter was dated June 17, it was not mailed until June 21, 1999. Moreover, the informal conference did not take place until one week after the incident, and four days after Patrick had returned to school.

This is not substantial compliance with the mandates of "100.2(l)(4). I have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (Appeal of J.G., 39 Ed Dept Rep ____, Decision No. 14,270; Appeal of Milano, 37 id. 472, Decision No. 13,908). Moreover, oral communication with parents regarding a suspension is not a substitute for the required written notification (Appeal of J.G., supra; Appeal of Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Milano, supra). Accordingly, the two-day suspension must be annulled and expunged from Patrick's records (id.).

In view of this disposition, I will not address petitioners' remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's suspension of Patrick from June 17 through June 18, 1999, be annulled and expunged from his record.

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