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Decision No. 15,472

Appeal of T.W. and P.K., on behalf of their daughter M.W., from action of the Board of Education of the City School District of the City of Ithaca regarding student discipline.

 

Appeal of D.D. and L.D., on behalf of their daughter H.D., from action of the Board of Education of the City School District of the City of Ithaca regarding student discipline.

 

Decision No. 15,472

 

(September 26, 2006)

 

Nina C. Aasen, Esq., attorney for petitioners T.W. and P.K.

 

Lance N. Salisbury, Esq., attorney for petitioners D.D. and L.D.

 

Bond, Schoeneck & King, PLLC, attorneys for respondent, Subhash Viswanathan, Esq., of counsel

 

MILLS, Commissioner.--In separate appeals, petitioners challenge the suspensions of their daughters, M.W. and H.D., from Ithaca High School by the Board of Education of the City School District of the City of Ithaca (“respondent”).  Because the appeals raise common issues of law and fact, they are consolidated for decision.  The appeals must be dismissed.

During the 2004-2005 school year, both M.W. and H.D. were sophomores at Ithaca High School.  During the summer following that school year, on July 31, 2005, both were involved in an incident in which eggs were thrown at the home and automobile of an Ithaca High School teacher.

At the opening of the 2005-2006 school year, both students were charged with violations of the school’s code of conduct.  By separate letters dated September 9, 2005, it was charged that each student “knowingly and intentionally damaged the personal property of an Ithaca High School teacher, when she joined a group of students who committed an act of violence, by driving to . . .  [the teacher’s] house twice around 1 a.m. during the early morning.  The students threw eggs on her house and car.  The premeditated act caused property damage exceeding $600 and emotional distress.”  Both M.W. and H.D. were charged with violating sections 2.1, 2.2, 2.3, 6.3, 6.6, and 6.7 of the code.

M.W. was suspended from school on September 14, 15, 16, 19, and 20.  She was the subject of a superintendent’s hearing conducted on September 19, 2005.  Upon being found guilty, by letter dated September 21, 2005, respondent’s superintendent suspended her for an additional two days, which were served on September 21 and 22.  An appeal of the determination was taken, and on November 15, 2005, M.W.’s appeal was heard by respondent.  By letter dated November 22, 2005, respondent denied the appeal and refused to expunge M.W.’s record.

H.D. was suspended from school on September 13, 14, 15, 16, and 19.  She was the subject of a superintendent’s hearing conducted on September 15, 2005.  Upon being found guilty, respondent’s superintendent suspended her for an additional two days, which were served on September 20 and 21.  By letter dated October 21, 2005, respondent’s counsel advised H.D.’s attorney that, because of a technical problem with the record, the district had decided to expunge the additional two-day suspension from H.D.’s record.  An appeal of the determination was taken, and on December 16, 2005, H.D.’s appeal was heard by respondent.  By letter dated January 11, 2006, respondent denied the appeal and refused to expunge the 5-day suspension from H.D.’s record.

Petitioners concede that their daughters participated in the incident on July 31, 2005, by throwing eggs at the home and automobile of an Ithaca High School teacher.  Indeed, both students signed statements on September 8, 2005, admitting participation, and testified at their hearings as to their involvement.  Petitioners, however, claim that respondent lacks the authority to impose discipline on their daughters because the incidents occurred off school property.  They also contend that respondent cannot impose discipline because the records of their daughters’ hearings are incomplete, and that even if respondent could do so, it violated its own disciplinary guidelines by imposing five-day and two-day suspensions, in excess of the guidelines.  In addition, petitioners D.D. and L.D. argue that their daughter’s written statement was obtained without giving her the opportunity to speak with them or with an attorney.

Initially, I will address petitioners’ claims that the hearing records are incomplete.  Education Law �3214(3)(c)(1) states, in part: “A record of the hearing shall be maintained, but no stenographic transcript shall be required and a tape recording shall be deemed a satisfactory record.”  In the case of the hearings, tape recordings were made, and, in addition, respondent provided typewritten transcripts prior to the times when it reviewed petitioners’ appeals from the superintendent’s decisions. 

T.W. and P.K. claim that the record of their daughter’s hearing is defective because the word “unintelligible” appears in “numerous sections.”  They do not, however, indicate how these flaws would have in any way affected respondent’s decision on appeal.  I have reviewed the transcript, which exceeds 125 pages, and find relatively few missing words.

D.D. and L.D. also claim that the record of their daughter’s hearing is incomplete.  Indeed, an October 21, 2005, letter from respondent’s attorney acknowledges that there was an accidental erasure of a portion of the tape before it was transcribed.  However, D.D. and L.D. do not indicate what portion is missing, or how their appeal to respondent was affected.  It further appears that the testimony of H.D. is complete.  (As noted above, respondent has already expunged the two-day suspension from H.D.’s record, and the appeal is moot as to that matter.)

The petitioners cite Appeal of A.R. (43 Ed Dept Rep 284, Decision No. 14,996), in support of their argument.  However, the facts in that appeal are very different from the facts in these appeals.  In A.R., a significant part of petitioner’s testimony was missing, and all of the testimony of the accused student was missing.  Moreover, as respondent points out, if petitioners were not satisfied with the transcripts, they could have requested access to the actual tape recordings, and could have produced their own transcripts.  They also could have demanded that respondent review the tapes directly, but apparently did not do so.  Upon review, I find that both records are adequate for review in accordance with Education Law �3214.

A board of education may impose discipline for events which occur off school property (seee.g.Matter of Coghlan v. Board of Education, 262 AD2d 949, citing Pollnow v. Glennon, 594 FSupp 220, 224 [SDNY 1984], affd, 757 F2d 496 [2d Cir 1985]; Appeal of Ravick, 40 Ed Dept Rep 262, Decision No. 14,477; Appeal of Orman, 39 id. 811, Decision No. 14,389).  Petitioners appear to argue that such authority was abridged by the adoption of Education Law �2801 (L. 2000, c.181, effective November 1, 2000), requiring boards of education to adopt codes of conduct for the maintenance of order on school property, and in which “school property” is defined, in part, to mean land contained “within the real property boundary line of a public elementary or secondary school.”  They also argue that respondent’s 2005-2006 school conduct manual states: “Students may not be punished by school authorities for offenses occurring off school grounds, unless such offenses are directly related to the orderly and safe operation of the school or are committed during a school-sponsored activity or on the school bus.” 

I reject both of these arguments.  The authority to suspend a student is conferred on a board of education by Education Law �3214(3), which allows suspension of a student “who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.”  There is no indication that this authority was intended to be limited by the adoption of Education Law �2801.  Indeed, the authority of a board to discipline students for conduct off school property has been upheld in Commissioner’s decisions rendered subsequent to the adoption of �2801.  (Seee.g.Appeal of K.S., 43 Ed Dept Rep 492, Decision No. 15,063; Appeal of R.C., 41 id. 446, Decision No. 14,741).

With respect to petitioners’ argument that the language in the school conduct manual abridges respondent’s authority, I disagree.  I find that an attack on the home and property of a teacher by students in the middle of the night is “directly related” to the orderly and safe operation of the school district.  Whether such an act is done for purposes of intimidation, retaliation, or otherwise, it is unacceptable, and is well within the authority of a board of education to impose discipline.

     Petitioners further charge that the penalties imposed violate respondent’s own guidelines, and are more severe.  They argue that respondent is bound by provisions in the student handbook (chart outlining consequences for infractions, pg. 17, 2005-2006 student handbook) and respondent’s school conduct manual (pgs. 33-36, 2005-2006 school conduct manual).  However, the student conduct manual states very clearly: “All of these violations may warrant more than the minimum consequences stated here.”  It is clear that these provisions are intended as minimum consequences, and that respondent is not bound by them in a particular case.  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 of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976) In this case, I find that the consequences were entirely justified. 

Finally, I find no merit in the claim by D.D. and L.D. that the written statement made by their daughter on September 8, 2005, should not be considered because their daughter was not given the opportunity to speak with them or with an attorney.  There is no legal requirement that a parent be contacted or present during an administrative investigation of an incident involving student conduct (Appeal of Phyllis and Marc B., 38 Ed Dept Rep 301, Decision No. 14,039).

I have considered the parties’ other arguments, and find them without merit.

 

THE APPEAL IS DISMISSED.

END OF FILE