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Decision No. 14,960

Appeal of M.F. and J.F., on behalf of their son C.F., and C.F. individually, from action of the Board of Education of the Portville Central School District and Stephen F. Day, Superintendent, regarding student discipline.

 

Decision No. 14,960

 

(September 22, 2003)

 

M. Mark Howden, Esq., attorney for petitioners Lynda M. Quick, Esq., attorney for respondents

 MILLS, Commissioner.--Petitioners appeal a determination of the Board of Education of the Portville Central School District ("respondent board") and its superintendent to suspend C.F.  The appeal must be sustained in part.

C.F. was a senior in high school at the time of the events leading up to this appeal.  On January 23, 2003, C.F. was involved in a physical altercation in the school parking lot after a high school basketball game with students from another school district.  On January 24, 2003, C.F. admitted to the high school principal that he hit the other students, but claimed that it was in self-defense.  C.F. also provided the principal with a written statement of his involvement in the incident. 

On January 24, 2003 the principal suspended C.F. for five days.  On that same date, the superintendent sent petitioners a notice that a superintendent"s hearing would be held on January 29, 2003.  C.F. was charged with committing "an act of violence (such as hitting, kicking, punching, or scratching) upon another student or any other person lawfully on school property...." Petitioners attended the hearing and were represented by counsel. 

By decision dated January 29, 2003, the hearing officer found C.F. guilty of the charges and recommended that he be suspended from school for the duration of the school year.  The hearing officer further recommended that the suspension be reduced to sixty days if C.F. was willing to seek and receive counseling for anger management and related issues and enter into a behavioral agreement with respondent. 

On February 4, 2003, the superintendent issued a decision suspending C.F. through April 25, 2003 and requiring petitioners at the end of the suspension to enter into a behavioral contract with the following conditions: a) [C.F.] will obey all applicable rules and policies of conduct for students at Portville Central School upon his return to attendance; b) [C.F.] agrees to receive counseling for anger management and related issues; c) [C.F.] shall not exhibit any acts of violent behavior while on school premises or attending school events; and d) [C.F.] agrees to such other conditions as imposed by the Portville Central School District.

On February 18, 2003, respondent board upheld the superintendent"s determination and this appeal ensued.  On March 18, 2003, petitioners" request for interim relief was granted to the extent that respondents were ordered to allow C.F. to return to school on April 28, 2003 without entering into the aforementioned behavioral contract.

Petitioners argue that the five-day suspension should be annulled because respondents failed to provide them with notice of their right to an informal conference with the principal prior to imposing the five-day suspension.  Petitioners also challenge on several grounds the suspension imposed as a result of the superintendent"s hearing.  Petitioners claim that it was improper for the hearing officer to admit C.F."s statement into evidence at the superintendent"s hearing because the statement was made without the permission of C.F."s parents and without prior notice to petitioners that it would be used as evidence at the hearing.  Petitioners claim that the only other evidence presented by the district at the hearing was hearsay testimony of the principal and assistant principal and, therefore, the decision was not based on sufficient evidence.  Petitioners further contend that respondents failed to consider the evidence supporting the claim of self-defense.  Therefore, petitioners claim that the decision to suspend C.F. was arbitrary and capricious. 

Petitioners also argue that the penalty is excessive because C.F. had a good scholastic record and only minor incidents of misconduct in the past.   Finally, petitioners submit that it was improper to condition C.F."s return to school on petitioners" entry into a behavioral contract with improper conditions.  Petitioners request an order annulling the suspension determinations and expunging C.F."s records.

Respondents contend that they fully complied with  Education Law "3214 and that the suspensions were lawful and appropriate.  Respondents argue that the decision to suspend C.F. was based on credible and substantial evidence and that the penalty was warranted based on the seriousness of the offense.  Respondents contend that since C.F. returned to school on April 28, 2003 with no behavioral contract, the appeal is moot.

The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 253, Decision No. 14,678; Appeal of Douglas and Judy H., et al., 36 id. 224, Decision No. 13,707).  The suspension has been served, C.F. returned to school in the absence of entering into the behavioral contact and graduated from respondents" district on June 28, 2003. Therefore, except to the extent that petitioners seek expungement of C.F."s records, these events have rendered the instant appeal moot.

The appeal must be sustained in part.  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 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.  This procedure affords the principal the opportunity to decide whether his original decision to suspend was correct or should be modified (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).  Education Law "3214(3)(b)(1) 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. 

In this case, no written notice was provided to petitioners informing them of their right to request an immediate informal conference as required by the Commissioner"s regulation.  Accordingly, the five-day suspension must be annulled and expunged from C.F."s record (Appeal of B.C. and A.C., 42 Ed Dept Rep ___, Decision No. 14,891; Appeal of a Student Suspected of Having a Disability, supra; Appeal of Milano, supra).

Petitioners also appeal the additional suspension imposed as a result of the superintendent"s hearing. A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello CSD v. Commissioner of Education, et al., 91 NY2d 133; Bd. of Educ. of City of New York v. Mills, 293 AD2d 37).  A hearing officer may draw reasonable inferences if the record supports the inference (Bd. of Educ. of Monticello CSD v. Commissioner of Education, et. al., supra; Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723.  Appeal of Harlan, 40 id. 309, Decision No. 14,488). 

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved. The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner"s judgment for that of the board (Appeal of J.C. and P.C., supra; Appeal of Harlan, supra).

I reject petitioners" contention that it was improper for the high school principal to meet with C.F. to discuss the incident, obtain a statement from him regarding the same and to use such statement as evidence in the superintendent"s hearing without the consent of his parents. Neither the provisions of the Education Law nor constitutional due process considerations require that a parent be present when a student is questioned by school personnel about possible infractions of school rules (Appeal of Lago, 38 Ed Dept Rep 723, Decision No. 14,126; Appeal of Pronti, 31 id. 259, Decision No. 12,636; Matter of Roach, 19 id. 377, Decision No. 10,176). 

Petitioners" contention that they were entitled to prior notice that the district intended to use C.F."s statement during the hearing is likewise without merit. Petitioners cite no statutory authority for such discovery, and indeed there is none (Education Law "3214[3]; Appeal of J.C. and P.C., supra; Appeal of C.Q. and J.Q., 41 Ed Dept Rep 294, Decision No. 14,691). 

I find substantial evidence in the record to support the hearing officer"s finding of fact and suspension imposed.  In an administrative proceeding such as this, neither proof beyond a reasonable doubt nor corroboration is necessary.  C.F. was accused of committing an act of violence on another while on school property, and he admitted doing so.  Such proof has been found sufficient in previous Commissioner's decisions (see, e.g., Appeal of Lago, supra; Appeal of Eddy, 36 Ed Dept Rep 359, Decision No. 13,748; Appeal of Pronti, supra).

Petitioners raised the issue of self-defense at the hearing but failed to establish it at the hearing.  In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Steven and Mary Ann M., 39 Ed Dept Rep 785, Decision No. 14,380; Appeal of World Network International Services, Inc. (WNIS), 39 id. 30, Decision No. 14,164).  The record demonstrates that C.F. was aware that students from the rival schools taunted each other during the game and that at least one fight occurred during the game.  Despite this knowledge, C.F. voluntarily followed a crowd of students yelling "the fight is on" to the parking lot after the game, went to the front of the crowd, and exchanged taunts with a student from the other school.  C.F. claims that he struck the first student in self-defense because the student allegedly made a sudden move toward him and made actions like he was going to hit C.F.  However, I find that the record does not support a self-defense claim.  The record demonstrates that not only did C.F. throw the first punch, but he admittedly struck the student three or four times in the face. 

Moreover, in light of the breadth and seriousness of C.F."s conduct, I cannot conclude that a three-month suspension is inappropriate. As such, there is no basis to overturn the decision or otherwise find the decision arbitrary, capricious or unreasonable (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 341, Decision No. 14,707; Appeal of D.C., 41 id. 277, Decision No. 14,684).

In light of my interim order dated March 18, 2003, I need not address the behavioral contract described in the superintendent"s decision dated February 4, 2003.  However, in light of my recent decision in Appeal of R.M. and L.M., 43 Ed Dept Rep ____, Decision No. 14,951, I urge respondents to review the district"s policies concerning such contracts.

 THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 IT IS ORDERED that respondents" five-day suspension of C.F. be annulled and expunged from his record.

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