Appeal of S.C., on behalf of her son B.C., from action of the Board of Education of the Half Hollow Hills Central School District regarding student discipline.

 

 

(November 10, 2004)

 

Ehrlich, Frazer & Feldman, attorneys for respondent, Sanjay B. Malhotra, Esq., of counsel

    

     MILLS, Commissioner.--Petitioner appeals the suspension of her son, B.C., by the Board of Education of the Half Hollow Hills Central School District (�respondent�).  The appeal must be dismissed.

     When this appeal arose, B.C. was enrolled in the eighth grade in respondent�s district.  On October 3, 2003, B.C. refused to dress for gym class, and when confronted about his conduct by a member of respondent�s administrative staff, he allegedly cursed and threw his books into the hallway.  As a result of the incident, the middle school principal imposed a one day in-school suspension and a one day out-of-school suspension.

     By letter dated October 3, 2003, the principal informed petitioner that B.C. would serve the in-school suspension on October 7, 2003 and the out-of-school suspension on October 8, 2003.  The letter also informed petitioner that she would have the opportunity for an informal conference with the principal, at which she could question complaining witnesses. 

     On October 17, 2003, B.C. allegedly intimidated and physically threatened another student.  The middle school principal imposed a one day in-school suspension and a one day out-of-school suspension.  By letter dated October 17, 2003, the principal informed petitioner that B.C. would serve the in-school suspension for the remaining class periods of October 17, 2003 and the out-of-school suspension on October 20, 2003.  The letter also informed petitioner that she would have the opportunity for an informal conference with the principal, at which she could question complaining witnesses. 

Petitioner claims that respondent failed to provide her with timely written notice and denied her the opportunity for an informal conference with respect to each of her son�s suspensions. Petitioner seeks a finding that the suspensions were improper and that they be expunged from her son�s record.

Respondent asserts that petitioner fails to state a cause of action and failed to exhaust her administrative remedies.  Respondent further contends that petitioner was afforded timely written notice and was afforded the opportunity for informal conferences.  Respondent submits that the suspensions were in all respects proper.

     Respondent�s contention that the appeal must be dismissed because petitioner failed to exhaust her administrative remedies is without merit.  Students who are suspended from school for five days or less may appeal their suspension directly to the Commissioner, unless a school district has adopted a policy that would require students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of Amara S., 39 Ed Dept Rep 90, Decision No. 14,182).  The record does not demonstrate that respondent has such a policy. Therefore, I will not dismiss the appeal on that basis.

     Because B.C. has already served the suspensions, the appeal is moot except to the extent that petitioner seeks expungement of his records (Appeal of D.J., 42 Ed Dept Rep 382, Decision No. 14,888).

Education Law �3214(3)(b)(1) provides that in the case of a suspension up to five days in length:

[T]he suspending authority shall provide the pupil with notice of the charged misconduct.... 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....

     Further, �100.2(l)(4) of the Commissioner�s regulations provides in pertinent part:

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.... Such notice shall provide a description of the incident(s) for which suspension is proposed and shall inform the parents....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 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....

The purpose of this provision 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 front of the principal who imposed the suspension in the first instance, who also has the 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. 

Petitioner claims that she did not receive the written notice regarding the October 7, 2003 incident until October 9, 2003 and that she did not receive any written notification from the district regarding the October 17, 2003 incident.  Respondent has submitted an affidavit from a staff member who states that she personally delivered the notice of suspension letter dated October 3, 2003 to petitioner�s residence on October 3, 2003.  She further states that she personally delivered the notice of suspension letter dated October 17, 2003 to petitioner�s residence on October 17, 2003.  Both notices were also sent by regular mail. 

Petitioner further claims that her availability for the informal conference scheduled for October 7, 2003 was not confirmed and that she left messages with several district officials regarding the same that went unanswered.  Respondent submits an affidavit from its principal stating that petitioner did not call to inform district officials that she was unavailable or to ask that the informal conference be rescheduled.  He further states that had she done so, he would have accommodated such request. 

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of M.F. and J.F., 43 Ed Dept Rep ___, Decision No. 14,960; Appeal of Kessler, 43 id. ___, Decision No. 14,958).  In this case, respondent submitted evidence in the form of affidavits to show that the district complied with the notice and informal conference requirements of the Education Law and Commissioner�s regulations.  Significantly, petitioner failed to submit a reply to respondents� answer and affidavits in support thereof.  After careful review of the record before me, I find petitioner has not met her burden of proving the facts upon which her claim is based. 

 

THE APPEAL IS DISMISSED.

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