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Decision No. 15,154

Appeal of R.M. and L.M., on behalf of their daughter M.M., from action of the Board of Education of the Northern Adirondack Central School District regarding student discipline.

Decision No. 15,154

(December 22, 2004)

Harris Beach, LLP, attorneys for respondent, Jacqueline M. Kelleher, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the suspension of their daughter by the Board of Education of the Northern Adirondack Central School District ("respondent"). The appeal must be sustained in part.

During the 2002-2003 school year, petitioners� daughter was an eighth grade student in respondent�s district. On the afternoon of April 29, 2003, a physical altercation occurred on the school bus between petitioners� daughter and another female student.

On April 30, 2003, the bus driver made a disciplinary referral and an investigation was conducted. The middle school principal met with the student and her mother on April 30, 2003. That same day, the high school principal spoke by telephone with the student�s mother. Seven of the students on the bus were interviewed, including petitioners� daughter and the other girl involved in the fight. Upon completing her investigation, the middle school principal placed petitioners� daughter on in-school suspension for the remainder of the day on April 30, and suspended her from school through May 5, 2003. Written notice of the suspension, dated April 30, 2003, was sent to petitioners by regular mail. Respondent contends it put the notice in the mail no later than May 1, 2003. Petitioners contend that they received the notice on May 4.

After her daughter served the suspension, the student�s mother identified to school personnel a provision in respondent�s code of conduct which provides that any student who is found to have committed a violent act other than bringing a weapon onto school property and whose proposed penalty exceeds a one-day suspension, will be given the same notice and opportunity for a hearing given to all students subject to a long-term suspension.

On June 19, 2003, a hearing was held pursuant to this provision of the code of conduct. On June 26, 2003, the hearing officer issued his findings and recommendations. The superintendent notified petitioners on June 30, 2003 of his determination that their daughter was guilty of fighting on the school bus on April 29, 2003, and that the suspension imposed was justified. On July 28, 2003, petitioners were notified of respondent�s decision to uphold the superintendent�s decision. Petitioners then commenced this appeal. Petitioners� request for interim relief was denied on September 22, 2003.

Petitioners contend that they did not receive written notice of the suspension until May 4, 2003 and that they were not informed of the right to an informal conference. Petitioners also contend that their daughter was left unsupervised while serving in-school suspension and request an order requiring respondent to have a teacher present during future in-school suspensions. Petitioners request that the suspension be expunged from their daughter�s record, that the bus driver be removed from his assigned route and given training, and that all buses have running videotapes reviewed daily. Petitioners further request that respondent transfer and transport her daughter to a school in another school district for the remainder of the 2003-2004 school year.

Respondent contends that the petition should be dismissed for failure to set forth a clear and concise statement of issues and failure to join the school bus driver as a necessary party. Respondent argues that the suspension was based upon competent and substantial evidence and is proportionate to the severity of the offense. Respondent contends that there is no basis to transfer or transport the student to a school in another school district.

Initially I will address the procedural matters. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of M.C., 43 Ed Dept Rep 276, Decision No. 14,993; Appeal of M.M., 42 id. 323, Decision No. 14,870; Appeal of Loveland and Hazelton, 42 id. 294, Decision No. 14,858). Here, petitioners seek sanctions against the school bus driver. Therefore, he should have been joined as a party and petitioners� failure to do so requires dismissal of the appeal as to him.

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 M.F. and J.F., 43 Ed Dept Rep 174, Decision No. 14,960; Appeal of a Student Suspected of Having a Disability, 41 id. 253, Decision No. 14,678). As the 2003-2004 school year has ended, petitioners� claim regarding transfer and transportation of their daughter to a different school for the remainder of the school year is moot and must be dismissed.

Turning to the merits, when a principal proposes to suspend a student from attendance for a period of five days or less, �100.2(1)(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 L.H., 43 Ed Dept Rep 315, Decision No. 15,005; Appeal of M.F. and J.F., supra; Appeal of a Student Suspected of Having a Disability, 40 id. 542, Decision No. 14,552). Written notice must be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt within 24 hours of the decision to propose suspension. 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, respondent failed to provide timely written notice of the suspension and petitioners� right to request an immediate informal conference, as required by the Commissioner�s regulation. Accordingly, the suspension must be expunged from the student�s record (Appeal of L.H., supra; Appeal of M.F. and J.F., supra; Appeal of Coleman, 41 Ed Dept Rep 101, Decision No. 14,628).

I have considered the parties� remaining contentions and find them to be without merit. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Goldin, 43 Ed Dept Rep 453, Decision No. 15,048). Here, petitioners have failed to meet that burden.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent remove all references to M.M.�s suspension during April 30 � May 5, 2003 from her records.

END OF FILE