Decision No. 15,145
Appeal of R.J. and D.J., on behalf of their daughter A.J., from action of the Board of Education of the Jamesville-Dewitt Central School District regarding student discipline.
Decision No. 15,145
(November 24, 2004)
Martin, Martin & Woodard, LLC, attorneys for petitioners, David P. Martin, Esq., of counsel
Bond, Schoeneck & King, PLLC, attorneys for respondent, Dan Bordoni, Esq., of counsel
MILLS, Commissioner.--Petitioners challenge the decision of the Board of Education of the Jamesville-Dewitt Central School District (�respondent�) and its high school principal to suspend their daughter A.J. The appeal must be sustained.
On September 12, 2003, A.J. attended a school-sponsored dance at respondent�s high school cafeteria. At some point, a chaperone noticed several students, including petitioners� daughter, lingering outside a doorway in a parking lot and instructed the students to come inside. The chaperone, along with an Onondaga County Deputy Sheriff who was on duty at the event, later went to the area where the students had gathered and discovered a water bottle, which contained alcohol (tequila). The chaperone reported this to an assistant principal, who then had the students sent to his office.
The assistant principal interviewed A.J. and she admitted that she took a drink from the bottle, initially indicating that it was one �sip� or �gulp.� The parties disagree about whether A.J. made a written statement that evening or whether she made any admissions to another assistant principal. At some point respondent�s high school principal arrived on the scene and spoke with R.J, the assistant principal and A.J. The principal informed R.J. that the incident would be reviewed Monday morning.
On Monday, September 15, 2004, the principal interviewed A.J. and she admitted that she had taken more than one sip from the bottle. Petitioners were notified by telephone that the principal intended to suspend A.J. Petitioners met with the principal and assistant principal at 11:45 a.m. that day. At the end of the meeting A.J. was suspended for five days. Petitioners requested an appeal to the superintendent and the principal arranged for them to meet with the superintendent later that day. At the end of that meeting the superintendent upheld the suspension. A letter dated September 15, 2003, notifying petitioners of the suspension and their right to an informal conference with the principal, was mailed via regular mail on September 16, 2003.
By letter dated September 22, 2003, petitioner D.J. asked the principal to arrange a conference �to ask questions of the complaining witness(s).� By letter dated September 25, 2003, the principal refused her request.
On November 3, 2003, respondent heard petitioners� appeal. By letter dated November 4, 2003, respondent notified petitioners that it was upholding the suspension. This appeal ensued.
Petitioners contend that they were denied an informal conference with the principal and the opportunity to question complaining witnesses before the suspension was imposed. Petitioners assert that the written suspension notice was insufficient, untimely, improperly mailed and in violation of law, regulation and district policy. Petitioners also assert that A.J. was unaware that there was alcohol in the bottle, and maintain that the punishment imposed was unduly harsh and did not comply with district policy. Petitioners object to the submission of affidavits by the superintendent, principal and two assistant principals because they allegedly contain information and allegations that were not part of the evidence considered by respondent in upholding the suspension. Petitioners ask that the suspension be expunged from the student�s record.
Respondent contends that it substantially complied with applicable law and that petitioners did have an informal conference with the principal before the suspension. Respondent asserts that the student gave conflicting accounts of her actions and that the decision to suspend her was based on her own statements. Respondent argues that both the procedure and the penalty are proper.
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�.
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�. Where possible, notification shall also be provided by telephone�. 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 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.)
In this case, respondent did not comply with the written notice requirements of �100.2(l)(4) as mandated under these circumstances, i.e., personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose a suspension. I have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (Appeal of a Student with a Disability, 43 Ed Dept Rep __, Decision No. 15,021; Appeal of a Student Suspected of Having a Disability , 41 id. Dept Rep 390, Decision No. 14,722; Appeal of J.G., 39 id. 393, Decision No. 14,270). Oral communication with parents regarding a suspension is not a substitute for the required written notification (Appeal of a Student Suspected of Having a Disability, supra; Appeal of J.G., supra; Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059).
Holding an informal conference with the principal does not excuse the requirement for written notification to students and their parents and/or guardians explaining their rights to the conference and the opportunity to question complaining witnesses. (see, Appeal of a Student with a Disability, 40 Ed Dept Rep 47, Decision No. 14,418; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059). Accordingly, the five-day suspension must be annulled and expunged from the student�s records.
In view of this disposition, I need not address petitioners� remaining contentions.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent�s suspension of A.J. from September 15-19, 2003 be annulled and expunged from her record.
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