Appeal of B.C. and A.C., on behalf of their son J.C., from action of the Board of Education of the Hilton Central School District regarding student discipline.

 

(June 19, 2003) 

Harris Beach LLP, attorneys for respondent, David W. Oakes and Laura Purcell, Esqs., of counsel 

MILLS, Commissioner.--Petitioners appeal the actions of the Board of Education of the Hilton Central School District ("respondent") concerning their son's suspension.  The appeal must be sustained in part.

Petitioners' son was nine years old and attending third grade at respondent's QUEST Elementary School in April 2002.  On the morning of April 2, 2002, a parent complained to the school principal that petitioners' son had displayed a photograph of himself naked during the prior day's lunch period.  The principal investigated and met with petitioners that same morning.  At the conclusion of the meeting, the principal handed petitioners a written notice stating that she was suspending J.C. for five days.   

By letter dated April 2, 2002, respondent"s superintendent notified petitioners that a hearing would be held to determine whether an additional period of suspension should be imposed.  Petitioners were represented by counsel at the hearing, which was held on April 9, 2002.  A teacher testified that on the morning of April 1, 2002, J.C. caused a disturbance in the classroom with his digital camera and was instructed to put it away in his backpack.  The teacher further testified that he later took a digital camera attachment away from J.C. for the remainder of the day because the lunch monitor told him that J.C. was disturbing girls in his class by taking their photographs. The lunch monitor testified about the complaints that she had received regarding J.C.'s conduct.  Two students testified that the photograph of a boy's naked groin area was displayed to a group of students on an electronic game screen during the April 1, 2002 lunch period, and that J.C. told them that it was a picture that he had taken of himself.  One of the students testified that it was a photograph of J.C. urinating.  The principal and assistant principal testified about the investigation of the incident.  Petitioners' son admitted that he had connected his digital camera attachment to another student"s electronic game, but otherwise denied the charges.

By letter dated April 10, 2002, the hearing officer found J.C. guilty and recommended that J.C. be suspended for the remainder of the school year unless the school psychologist concurred in a determination that he could return to school earlier without repeating his prior misconduct or engaging in further serious misconduct.  By letter also dated April 10, 2002, the superintendent issued a written decision adopting the hearing officer's findings and recommendation.  The letter further advised petitioners that J.C. was eligible for tutoring during the suspension period.

Petitioners appealed the superintendent's decision to respondent. On May 15, 2002, respondent upheld the superintendent's decision.  Following correspondence between petitioners and the principal, J.C. returned to school on June 3, 2002.  Petitioners commenced this appeal on June 14, 2002.

Petitioners contend that they were denied due process because the principal did not advise them of their right to an informal conference or their right to question the complaining witnesses before suspending their son on April 2, 2002.  They further contend that their son's accusers were not made available at the superintendent's hearing and that the hearing officer did not ask whether they wanted to call witnesses or present a defense.  They claim that the administration did not provide them with information concerning a search of their son's belongings and that, in any event, respondent failed to meet its burden of proof at the superintendent's hearing.  Petitioners ask that their son's record be expunged and that he be allowed to take a Reach Program Test missed during his suspension.  They also ask that the principal and superintendent be reprimanded.  Respondent contends that the principal did have an informal conference with petitioners and that petitioners were afforded due process concerning their son's suspension.  Respondent further offers to administer the Reach Program Test to petitioners' son.

When a principal proposes to suspend a student from attendance for a period of five days or less, "100.2(l)(4) of the Commissioner"s regulations requires that immediate written notice be provided to the parents to advise them of the reason for the proposed suspension and their right to an immediate informal conference with the principal. The purpose of this regulation is to ensure that parents of a student suspended for five days or less are made aware of the statutory right provided in Education Law "3214(3)(b)(1) 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.  The statute provides that written notice and an opportunity for a conference must take place prior to the suspension unless the student presents a continuing danger or ongoing threat of disruption.  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 witnesses without the principal present (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 542, Decision No. 14,552; Appeal of a Student with a Disability, 38 "id. 378, Decision No. 14,059; Appeal of Milano, 37 id. 472, Decision No. 13,908).

In this case, the April 2, 2002 meeting between the principal and petitioners occurred prior to petitioners' receipt of any written notice.  It did not include an opportunity to question witnesses in the principal"s presence.  The subsequent written notice of J.C."s suspension, which respondent delivered as the suspension took effect, did not advise petitioners of their right to question witnesses.  Respondent thus failed to comply with the governing law and regulations.  Accordingly, the suspension of petitioner"s son from April 2 to April 8, 2002 must be annulled and expunged from the student"s record (Appeal of a Student Suspected of Having a Disability, supra; Appeal of Milano, supra).

Education Law "3214(3)(c)(1) provides that no pupil may be suspended in excess of five days unless the pupil and person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil shall have the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil"s behalf. Petitioners have failed to supply any evidence to support their claim that they were denied the opportunity to question witnesses at the superintendent"s hearing.  To the contrary, the hearing transcript reveals that petitioners" attorney questioned the teacher, two students, the lunch monitor, and the principal.  After petitioners' son testified, petitioners' counsel declined the hearing officer's invitation to call further witnesses.

Education Law "3214(3)(a) authorizes a school district to suspend a "pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others."  The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep ___, Decision No. 14,707; Bd. of Educ. of Monticello CSD v. Commissioner of Educ., 91 NY2d 133, 140-41; Bd. of Educ. of City School Dist. of City of New York v. Mills, 293 AD2d 37).  A hearing officer may draw a reasonable inference if the record supports the inference (Appeal of J.C. and P.C., 41 Ed Dept Rep ___ Decision No. 14,723; Appeal of a Student with a Disability, 39 id. 427, Decision No. 14,278).

Through his attorney at the superintendent's hearing, J.C. admitted that his camera attachment was used in the school lunchroom and that he was present when the stored pictures were shown to other students.  The additional testimony formed a reasonable basis for the hearing officer to infer that one of the stored photographs J.C. brought to school and displayed in the lunchroom was a picture that he had taken of himself urinating.  Since the hearing officer"s findings are based upon sufficient and competent evidence that petitioners" son engaged in the conduct charged, there is no basis to overrule respondent's determination or expunge the disciplinary record concerning the suspension imposed following the superintendent's hearing.

In light of this disposition, I need not address the parties" remaining contentions.   

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED. 

IT IS ORDERED that respondent's suspension of petitioner's son from April 2 to April 8, 2002 be annulled and expunged from his record.

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