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Decision No. 15,578

Appeal of J.R-B., on behalf of her daughter E.B., from action of the Board of Education of the City School District of the City of Schenectady regarding student discipline.

Decision No. 15,578

(May 7, 2007)

Shari Greenleaf, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner brings this appeal against the Board of Education of the City School District of the City of Schenectady (“respondent”) challenging a determination by respondent’s superintendent suspending her daughter, E.B.  The appeal must be sustained in part.

During the 2005-2006 school year, E.B. attended Schenectady High School.  On November 9, 2005, E.B. was involved in a physical confrontation with a group of students and allegedly failed to follow the directive of school officials.  E.B. was arrested and charged with riot in the second degree and unlawful assembly.  By notice dated November 9, 2005, petitioner was informed that E.B. would be suspended for five days effective November 10, 2005.  Upon completion of the five-day out-of-school suspension the associate superintendent determined that E.B. posed a continuing danger to persons or property and an ongoing threat of disruption to the academic process.  E.B. was thereafter placed in in-school suspension pending a scheduled superintendent’s hearing.

By letter dated November 18, 2005, petitioner was notified that a disciplinary hearing would be held on November 23, 2005.  By letter dated November 29, 2005 petitioner was notified that the hearing was rescheduled to December 6, 2005 and informed of her daughter’s right to be represented by counsel, to cross-examine witnesses and to present witnesses on her own behalf.

Petitioner, E.B., E.B.’s aunt and a community activist attended the hearing along with various school officials.  At the hearing E.B. admitted that she was involved in the confrontation to break up the fight involving other students and her best friend.  She also testified that she pulled the hair of another student who had grabbed her hair.

By notice dated December 9, 2005, petitioner was informed of the superintendent’s decision to suspend her daughter for eight weeks, including time served.  Petitioner was also informed that E.B. would receive tutoring during the time of the suspension.  This appeal ensued.

Petitioner alleges that the notice of five-day suspension did not comply with Education Law §3214 and §100.2 of the Commissioner’s regulations, because it was sent by regular mail, postmarked nine days after the suspension, and did not advise petitioner of her right to an immediate informal conference at which she could question complaining witnesses.  Petitioner alleges that her daughter’s due process rights were violated because the school declined her request to have a witness attend the superintendent’s hearing and because the charges were not substantiated.  Petitioner contends that she was rushed at the hearing, that she was not informed that she could testify, and that she was at a disadvantage because she was not provided with an attorney.  Petitioner contends that the district’s code of conduct was violated because the penalty imposed was punitive.  Finally, petitioner alleges that alternate education was not adequate or provided in a timely manner in accordance with Education Law §3214.

Petitioner requests that the suspensions be expunged from her daughter’s educational record.  Petitioner also requests “educational restitution” in the form of home tutoring.

Respondent alleges that petitioner fails to state a claim upon which relief may be granted and failed to exhaust administrative remedies.

Education Law §3214 does not require a petitioner to appeal a suspension of five days or less to the board of education unless the school district has adopted a policy requiring appeals of short-term suspensions to the board of education before appealing to the Commissioner (Appeal of S.C., 44 Ed Dept Rep 164, Decision No. 15,134; Appeal of Amara S., 39 id. 90, Decision No. 14,182).  The record does not demonstrate that respondent has such a policy.  Therefore, I will not dismiss petitioner’s claims regarding the short-term suspension for failure to exhaust.

In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of R.F., 43 Ed Dept Rep 206, Decision No. 14,972).  The notice and opportunity for an informal conference must take place prior to the 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 notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, 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 or her original decision to suspend was correct or should be modified (Appeal of R.M. and L.M., 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).

In this case, the notice was inadequate.  The Official Suspension Notice states, “Every student has the right to a hearing before the Principal on charges relating to the suspension.  Notify the Principal immediately if you wish to exercise this right.”  The notice failed to inform the petitioner that she could request an opportunity to question complaining witnesses.  Accordingly, the five-day suspension from November 10 to November 17, 2006 must be annulled and expunged from E.B.’s record (Appeal of P.D., 46 Ed Dept Rep 50, Decision No. 15,438; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student Suspected of Having a Disability, 44 id. 475, Decision No. 15,236).

As to the long-term suspension, Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination.  Accordingly, the decision of a superintendent to suspend a student in excess of five school days following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of D.C., 41 id. 190, Decision No. 14,661; Appeal of P.R. and C.R., 41 id. 48, Decision No. 14,611).

In this case, the record indicates that petitioner did not appeal the superintendent’s decision to respondent.  As a result, this appeal comes to me prior to exhaustion of the administrative remedy specifically provided by statute, which must be pursued before an appeal to the Commissioner may be commenced (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 332, Decision No. 14,047; Appeal of Evette G., 37 id. 192, Decision No. 13,839).

Finally, petitioner’s claim that respondent’s alternative education program was inadequate must also be dismissed.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329) Petitioner does not offer any evidence for her allegation that respondent’s alternative education program was inadequate.  Therefore, petitioner has not met her burden.

In light of this disposition I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from E.B.’s records any reference to the five-day suspension.

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