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Decision No. 14,890

Appeal of P.F. and M.F., on behalf of their daughter C.F., from action of the Board of Education of the Shenendehowa Central School District regarding student discipline.

 

(June 19, 2003) 

McCary and Huff, LLP, attorneys for respondent, Kathryn McCary, Esq., of Counsel 

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Shenendehowa Central School District ("respondent") to suspend their daughter, C.F., from school.  The appeal must be sustained in part.

 On Friday, October 4, 2002, a school monitor reported seeing a male student in the parking lot looking at different cars and eventually placing a bundle in a parked car.  When the car was searched, a bottle of alcohol wrapped in a sweatshirt was discovered.  School officials identified the car by its parking permit as one driven by C.F., a senior who had already departed school grounds for a swim meet on Long Island and could not be contacted.  School officials contacted petitioners, who came to the school that afternoon and met with a school dean and the assistant principal, although they had not yet spoken with C.F. 

At that meeting, the assistant principal informed petitioners that two male students had stated that C.F. had given them money to buy alcohol for her.  They had planned to give the alcohol to C.F. on Thursday night, off school grounds, but had been unable to, so they brought it to school on Friday.  The students stated that they met with C.F. in school between the first and second periods and she gave them a sweatshirt, her license number, and permission to put the alcohol in her car.  The assistant principal informed petitioners that she expected to recommend that C.F. be suspended for five days, but she would wait to make a final decision until after speaking personally with C.F. on Monday.  The assistant principal then conferred with the principal who agreed that a five-day suspension would be a reasonable disciplinary response, and approved its imposition.

When petitioners and C.F. met with the dean and assistant principal on Monday, October 7, 2002, C.F. confirmed the sequence of events.  In accordance with the principal"s direction, the assistant principal advised petitioners that C.F. was suspended for five days.  She further informed petitioners that the athletic director would advise them concerning C.F."s continued participation on the swim team.  Respondent concedes that the principal sent written notice of the suspension dated October 7, 2002 to petitioners by regular mail, and that the written notice did not inform petitioners that they could request an informal conference with an opportunity to question complaining witnesses.  Petitioners assert that they did not receive the principal"s letter until October 11, 2002.  

     Upon C.F."s return to school, the athletic director advised her that, in accordance with the Athletic Code of Conduct, she could not participate in the next three swim meets.  Subsequently, the swim coach removed C.F. from her position as captain of the swim team; the Student Faculty Senate ("Senate") removed her from the office of vice-president; and the National Honor Society ("NHS") committee rejected her application.  C.F. also addressed the swim team regarding the incident and her removal.  The parties dispute whether she did so voluntarily.

Petitioners met with the superintendent on November 5, 2002.  By letter dated November 18, 2002, petitioner P.F.  requested that the superintendent annul C.F."s five-day suspension.  Prior to receiving a response, P.F. appealed to respondent by letter dated November 26, 2002.  Petitioners and C.F. met with respondent on December 23, 2002.  By letter dated December 30, 2002, respondent notified petitioners that it would take no action.  This appeal ensued. 

Petitioners seek annulment and expungement of C.F."s suspension, C.F."s reinstatement as Senate Vice President for the remainder of the 2002-03 school year, and her reinstatement as captain of the swim team for any remaining swim team obligations for the 2002-03 school year.  Petitioners also request that respondent re-evaluate C.F."s NHS application and approve that application if the suspension is annulled.

Respondent asserts that the suspension was proper because C.F. admitted her involvement in the incident.  Respondent also asserts that C.F."s athletic suspension was in accordance with the Athletic Code of Conduct; the swim coach properly exercised her discretion in removing C.F. as captain; and the decision of the NHS committee was made in accordance with the process and standards applicable to all applicants.  Additionally, respondent asserts that the decision of the Senate to remove C.F. as vice-president was made in accordance with the Student Senator Code of Conduct, which was properly applied by the Senate"s disciplinarian committee. 

The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of T.M., Jr., 42 Ed Dept Rep ___, Decision No. 14,855; Appeal of Schrader, 42 id. ___, Decision No. 14,771; Appeal of E.F., 42 id. ___, Decision No. 14,762).  Since C.F. has resigned as a member of the Senate, any claims surrounding her removal as Senate vice-president have been rendered moot.  Similarly, the swim season ended in November.  Although petitioners seek C.F."s reinstatement as captain for any remaining swim team obligations for the 2002-03 school year, there is no information in the record to indicate that any such obligations still exist.  Accordingly, the claims regarding C.F."s participation on the swim team are moot (see, Appeal of N.C., 42 Ed Dept Rep ___, Decision No. 14,794).

Education Law "3214(3)(a) authorizes a board of education or trustees, superintendent of schools, district superintendent or a school principal to suspend a student.  Education Law "3214(3)(b)(1) provides that in the case of a suspension 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 they may present the student"s version of the event and ask questions of the complaining witnesses.  That section further provides:

The aforesaid notice and opportunity for an informal conference shall take place prior to suspension of the pupil unless the pupil"s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the pupil"s notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable. 

Notice of the right to request an informal conference is also required by "100.2(l)(4) of the Commissioner"s regulations:

(4) Parental notice concerning student suspensions.  When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be 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 decision to propose suspension at the last known address or addresses of the parents or persons in parental relation.  Where possible, notification shall also be provided by telephone if the school has been provided with a telephone number(s) for the purpose of contacting parents or persons in parental relation.  Such notice shall provide a description of the incident(s) for which suspension is proposed 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)(b).  Such notice and informal conference shall be in the dominant language or mode of communication used by the parents or persons in parental relation to the pupil.  Such notice and opportunity for an informal conference shall take place prior to the suspension of the student unless the student"s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable. (Emphasis added).

The purpose of "100.2(l)(4) is to make the parents of a student suspended for five days or less aware of the statutory right provided in Education Law "3214(3)(b) to question the complaining witnesses in the presence of the principal who has authority to terminate or reduce the suspension.   

The principal"s October 7 letter to petitioners does not meet the requirements described above.  Respondent concedes that the principal failed to utilize a method of delivery required by "100.2(l)(4) but instead sent the letter by regular mail.  Respondent also concedes that the letter failed to inform petitioners that they could request an opportunity to question the complaining witnesses.  Respondent asserts, however, that these procedural irregularities were harmless and do not constitute a basis to annul the suspension.  I disagree.  The October 7 letter was the only written notice sent to petitioners and it was not received until the fifth day of the suspension.  It clearly failed to provide petitioner with timely written notice in advance of the suspension or provide an opportunity for an informal conference with the principal where complaining witnesses could be questioned before the suspension.  Nor did it indicate that the student"s continued presence in school posed a threat.

Respondent"s claim -- that the oral notice provided to petitioners and their meeting with the assistant principal on October 4 and 7, satisfied the due process requirements of the statute and regulation -- is refuted by the clear language of Education Law "3214(3)(b), which requires written notice, a conference with the principal and an opportunity to question the complaining witnesses.  The Commissioner has recognized these requirements in many decisions (see, e.g., Appeal of A.L., Jr., 42 Ed Dept Rep ___, Decision No. 14,883; Appeal of J.L., 42 id. ___, Decision No. 14,842; Appeal of a Student Suspected of Having a Disability, 40 id. 546, Decision No. 14,553).  Accordingly, the five-day suspension must be annulled and expunged from C.F."s record.

Finally, regarding C.F."s application for membership in the NHS, membership is a privilege, not a right, and decisions regarding admission to the society are left to the discretion of the local education authorities (Appeal of Andela, 38 Ed Dept Rep 388, Decision No. 14,062; Appeal of Guardi, 37 id. 535, Decision No. 13,921; Appeal of Andela, 36 id. 178, Decision No. 13,693).  A decision regarding admission to the NHS will not be set aside unless that decision is arbitrary, capricious and without a rational basis (Appeal of Rotella, 40 Ed Dept Rep 385, Decision No. 14,506; Appeals of Andela, supra).

According to the NHS faculty advisor"s affidavit, an eligible applicant must submit essays on community service and leadership skills that are reviewed by faculty and student members of the NHS.  In addition, a memorandum is sent to all teachers requesting their opinions on the character of the applicants.  The faculty advisor avers that "responses from teachers and administrators expressed negative opinions about [C.F."s] character in light of the incident that gave rise to her suspension from school . . . based on those responses, the other two [NHS] advisors and I concluded that [C.F.] did not meet the necessary criteria for admission to the [NHS]."  The advisor also states that the decision to reject C.F."s application "was not part of the disciplinary consequences for [her] misconduct and was made independently in accordance with the [NHS"s] own rules and standards."  In an appeal to the Commissioner, petitioners bear the burden of establishing all of the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Laurie, 42 Ed Dept Rep ___, Decision No. 14,867).  Petitioners have submitted no evidence contradicting the advisor"s statements.  Petitioners have thus not met their burden of proof on this issue. 

THE APPEAL IS SUSTAINED IN PART. 

IT IS ORDERED that respondent"s suspension of C.F. from October 7-11, 2002 be annulled and expunged from her record.

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