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Decision No. 15,124

 

Appeal of a Student with a Disability, by his parent, from action of the Board of Education of the Hyde Park Central School District regarding student discipline.

 

 

(October 7, 2004)

 

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

 

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Hyde Park Central School District (�respondent�) suspending her son from school.  The appeal must be sustained in part.

On October 21, 2003, petitioner�s son allegedly threatened his bus driver while riding the school bus home.  After the bus driver reported the incident to district officials, the high school principal (�principal�) decided to suspend petitioner�s son for five days, commencing October 23, 2003.  The following morning, petitioner�s son was escorted from the bus by the assistant principal, who telephoned petitioner to advise her that her son was being suspended from school for threatening the bus driver and that she should pick him up immediately.  Petitioner was also notified by the principal, by letter dated October 23, 2003, that her son was being suspended for �5 days, commencing 10/23/03 and concluding 10/29/03.�  The letter, which apparently was sent by regular mail, further advised petitioner that she and her son had the right to an immediate informal conference with the principal and to ask questions of the complaining witnesses.

By letter dated October 24, 2003, respondent�s superintendent (�superintendent�) advised petitioner that a superintendent�s hearing would be held on October 29, 2003 based on the allegation that on October 21, 2003 her son threatened the bus driver by stating �I am going to [expletive] blow up your house and I hope your [expletive] kids and [expletive] pet is in there.�  The hearing commenced on October 29, 2003, and reconvened on November 6, 2003, at petitioner�s request, to allow her to call additional witnesses.

At the hearing, the bus driver testified to the threat allegedly made by petitioner�s son.  Petitioner�s son admitted cursing at the bus driver, but denied threatening her.  Petitioner also called two students who testified that they were on the bus and did not hear petitioner�s son threaten the bus driver.  A school resource officer testified that S.S., another student who was on the bus that day, admitted to him outside the vice principal�s office that he, not petitioner�s son, had threatened the bus driver.

On November 7, 2003, the hearing officer issued a report and recommendation finding substantial evidence to support the charge and referring the matter to the district�s committee on special education (�CSE�) for a manifestation hearing to determine whether there was any relationship between the student�s disability and the behavior that was the subject of the disciplinary action.  The district�s CSE met on November 12, 2003 and determined that the student�s conduct was not a manifestation of his handicapping condition and that his IEP is appropriate to meet his educational needs.  That same day, the hearing officer issued a report recommending that the student be suspended from school until January 30, 2004 and from bus transportation for the balance of the school year.  By letter dated November 13, 2003, the superintendent advised petitioner that he accepted the hearing officer�s findings and recommendations.  By letter dated December 12, 2003, respondent�s president advised petitioner that respondent had adopted the superintendent�s determination.  This appeal ensued.

Petitioner contends, among other things, that she was not advised of her right to an informal conference with the principal and did not receive timely written notice of her son�s short-term suspension.  Additionally, petitioner claims that the hearing officer was not objective and that the punishment imposed was excessive.  Finally, petitioner claims that alternative education provided to her son was inadequate.  Petitioner requests that I order her son�s suspension annulled and his records expunged.

Respondent contends that the hearing officer�s findings and penalty recommendation are supported by substantial evidence and that the principal properly notified petitioner of her right to an informal conference.  Respondent also contends that the appeal is moot because the suspension period has ended.

At the outset, I note that respondent objects to petitioner�s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of General, 43 Ed Dept Rep    , Decision No. 14,948; Appeal of Crosier, 42 id. 232, Decision No. 14,835).  Therefore, while I have reviewed petitioner�s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Preliminarily, I find that because the student has served the suspension, the appeal is moot except to the extent that petitioner seeks expungement of his records (Appeal of a Student with a Disability, 43 Ed Dept Rep ___, Decision No. 15,021; Appeal of M.K., 42 id. 405, Decision No. 14,894).

I now turn to petitioner�s complaints about the initial short-term suspension of her son.  Education Law �3214(3)(b)(1) provides:

The board of education, board of trustees, or sole trustee, superintendent of schools, district superintendent of schools and the principal of the school where the pupil attends shall have the power to suspend a pupil for a period not to exceed five school days.  In the case of such a suspension, the suspending authority shall provide the pupil with notice of the charged misconduct.  If the pupil denies the misconduct, the suspending authority shall provide an explanation of the basis for the suspension.  The pupil and the person in parental relation to the pupil shall, on request, be given an opportunity for an informal conference with the principal at which the pupil and/or person in parental relation shall be authorized to present the pupil�s version of the event and to ask questions of the complaining witnesses.  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.

 

Section 100.2(l)(4) of the Commissioner�s regulations provides:

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)

 

Respondent did not comply with these mandates in several respects.  The record reflects that the principal notified petitioner of her son�s suspension by telephone on October 22, 2003 and by letter dated October 23, 2003, which was apparently sent by regular mail.  The Commissioner has repeatedly held that written notification by regular mail does not meet the required standard (Appeal of R.F., 43 Ed Dept Rep    , Decision No. 14,972; Appeal of a Student Suspected of Having a Disability, 41 id. 390, Decision No. 14,722; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).  Nor is oral communication with parents regarding a suspension a substitute for the required written notification (Appeal of a Student Suspected of Having a Disability, supra; Appeal of J.G., supra). Further, because respondent does not allege that the student�s presence in school posed a continuing danger or threat, the principal was obligated to conduct an informal conference before suspending the student (Education Law �3214[3][b][1]).  He did not.  The student�s suspension from October 23 to October 29, 2003 must therefore be annulled and expunged from his record (Appeal of B.C. and A.C., 42 Ed Dept Rep 395, Decision No. 14,891).

I also find that the short-term suspension exceeded the five-day limit set forth in �3214(3)(b).  Although the principal�s October 23, 2003 letter states that the student would be suspended for five days from October 23, 2003 through October 29, 2003, the record reflects that the student was not permitted to attend school for six days, beginning on October 22, 2003.  I remind respondent of the need to abide by the statutory five-day limit in the future.

With respect to the student�s long-term suspension, I find no basis to disturb respondent�s determination of guilt.  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 (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; Appeal of B.C. and A.C., supra).  A hearing officer may draw a reasonable inference if the record supports the inference (Appeal of B.C. and A.C., supra; Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723).  With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of T.R. and M.D., 43 Ed Dept Rep    , Decision No. 15,036; Appeal of K.M., 41 id. 318, Decision No. 14,699).

Although petitioner�s witnesses supported her son�s assertion that he did not threaten the bus driver, the hearing officer credited the bus driver�s testimony and found the student witnesses incredible.  Under these circumstances, I will not substitute my judgment for that of the hearing officer and find substantial evidence to support the hearing officer�s determination.

I have examined petitioner�s remaining claims regarding her son�s long-term suspension and find them to be without merit.

 

THE APPEAL IS SUSTAINED IN PART.

 

IT IS ORDERED that respondent remove any reference to the student�s short-term suspension from his records.

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