Appeals of C.C. and R.C., on behalf of their son N.C., from action of the Board of Education of the Peru Central School District regarding student discipline.

Decision No. 15,700

(December 21, 2007)

Tabner, Ryan and Keniry, LLP, attorneys for petitioners, Tracy L. Bullett, Esq., of counsel

Stafford, Owens, Curtin & Trombley PLLC, attorneys for respondent, Jacqueline M. Kelleher, Esq., of counsel

MILLS, Commissioner.--In two separate appeals (referred to separately as “N.C. #1” and “N.C. #2”), petitioners challenge the discipline imposed on their son, N.C., by the Board of Education of the Peru Central School District (“respondent”).  Because the appeals involve similar issues of fact and law, they are consolidated for decision.  The appeals must be sustained in part.

On May 12, 2007, N.C. and his sister K.C. attended the Peru High School junior prom and shared a limousine along with several friends.  According to the principal, who was present, several students, including K.C., were so intoxicated at the prom that their parents, including petitioners, had to be called, and several ambulances had to be summoned.  As part of her inquiry regarding the ill students, the principal questioned several other students, including N.C.

The parties agree on the following facts.  At the time of the incident, N.C. was 17 years old and a member of the varsity baseball team.  Outside the building where the prom was being held, the principal and baseball coach questioned N.C. about whether he was, or had been, drinking alcohol.  N.C.’s father, petitioner, C.C., who had arrived, requested to be present during this questioning, but the principal denied his request.  After initially questioning N.C., the principal spoke to petitioners and allowed N.C. to return to the prom.

On Monday, May 14, 2007, the principal met with C.C. and N.C.  By letter dated May 15, 2007, the principal suspended N.C. for five days from May 15 to May 21, 2007, for “being under the influence of alcohol while at a school function (the Junior Prom) . . . [which] is contrary to the expectations as set out in our Student Handbook and our District School Conduct and Discipline Policy.”  The letter also informed petitioners that, as an athlete, N.C.’s suspension also constituted a violation of his Athletic Code of Conduct Agreement.

By letter dated May 16, 2007, petitioners appealed the suspension to the superintendent.  By letter dated May 17, 2007, the superintendent denied the appeal.  Thereafter, petitioners appealed to respondent.  By letter dated June 13, 2007, the district clerk informed petitioners that on June 12, 2007, respondent upheld the superintendent’s determination.  Petitioners commenced “N.C. #2” to challenge the school suspension.

By letter dated May 18, 2007, the district’s athletic director informed petitioners that N.C. had been “involved in an incident . . . in violation of the Interscholastic Code of Conduct . . . Second Violation.”  The letter also informed petitioners that N.C. would be suspended from athletics for the current sports season and the next two athletic seasons.  The athletic director also verbally gave C.C. this information.

By letter dated May 20, 2007, petitioners appealed the athletic suspension to the athletic director, who denied the appeal.  Petitioners then appealed to the Athletic Steering Committee (“Steering Committee”), which held a special hearing on May 24, 2007.  N.C. and four student witnesses attended the hearing.  At the hearing, N.C. testified that he did not drink any alcohol at the prom.  The other four students testified that there was alcohol in the limousine but they did not see N.C. drink any.  On May 25, 2007, the Steering Committee upheld the athletic director’s decision and petitioners appealed to the superintendent.  By letter dated June 5, 2007, the superintendent sustained the Steering Committee’s decision.  Petitioners commenced N.C. #1 to challenge the athletic suspension.  Petitioners’ request for interim relief in N.C. #1 was denied on July 25, 2007.

In both appeals, petitioners contend that there is no proof that N.C. drank alcohol, was under the influence of alcohol, or was intoxicated at the prom on May 12, 2007.  They assert that no one reported smelling alcohol on N.C. and no one observed that he was intoxicated.  Moreover, N.C. avers that during questioning by the principal and coach, he told them that he was not, nor had he been drinking alcohol, and reiterated his denial at the May 14, 2007 meeting in the principal’s office.

In N.C. #2, petitioners contend that the principal’s decision to suspend N.C. was arbitrary, capricious and irrational since she allowed N.C. to return to the prom following a “field sobriety test” in which the principal asked N.C. to breathe in her face to determine if he had been drinking.  They assert that the suspension was contrary to the district’s Code of Conduct because, if N.C. had been drinking or was under the influence of alcohol, the principal should have immediately removed him from the prom.  Petitioners also contend that respondent violated the due process requirements of Education Law §3214(3)(b)(1) and §100.2(l)(4) of the Commissioner’s regulations because the written notice of N.C.’s suspension, dated May 15, 2007, was sent by regular mail and failed to inform them of their right to confront witnesses and to have an informal conference in accordance with Education Law §3214(3)(b)(1).  They further contend that the suspension was excessive and request that it be reversed and expunged from N.C.’s record.

In N.C. #1, petitioners argue that since the academic suspension is devoid of proof, there is no basis for the athletic suspension.  They assert that the athletic suspension was also excessive and lacked reason.  They request that the athletic suspension also be reversed and expunged from N.C.’s record.

Respondent asserts that the school and athletic suspensions were appropriate and lawful and that N.C. was accorded appropriate due process.  Respondent disputes that N.C. denied using alcohol.  Respondent also denies that the principal threatened to have C.C. arrested, conducted a field sobriety test or informed petitioners that she had determined that N.C. had not been drinking.  Respondent also contends that N.C. #1 is moot because N.C. no longer attends school in the district.

I must first address a procedural issue.  By letter dated October 12, 2007, the new principal of the district’s high school submitted an affidavit stating that N.C. is attending a different high school.  The Commissioner 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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  I will not dismiss the appeals as moot, however, because petitioners also seek expungement of N.C.’s records (see Appeal of L.O. and D.O., 47 Ed Dept Rep ___, Decision No. 15,666; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student with a Disability, 44 id. 136, Decision No. 15,124).

I will first consider the academic suspension in N.C. #2.  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).

The written notice of a short-term suspension 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  (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

In this case, C.C. and N.C. met with the principal on May 14, 2007 before the suspension was imposed.  The principal had questioned N.C. the night of the prom and had completed the conduct referral form.  Thus, she was the complaining witness in this case and therefore, C.C. and N.C. were given the opportunity to meet with the complaining witness against N.C. before the suspension was imposed (seeAppeal of L.O. and D.O., 47 Ed Dept Rep ___, Decision No. 15,666).

Petitioners further claim that the principal’s May 15, 2007 suspension letter was delivered by regular mail and thus did not comply with the notice requirements of §100.2(l)(4).  Respondent states, however, that while the letter may have been sent by regular mail, it was also hand-delivered to C.C. at the high school at 5:00 p.m. on May 15, 2007.  Nonetheless, such delivery occurred after the suspension was already in effect.  Accordingly, the five-day suspension must be annulled and expunged from N.C.’s record (seeAppeal of V.R. and C.R., 43 Ed Dept Rep 99, Decision No. 14,934).  In light of this disposition, I need not address the parties’ other arguments in N.C. #2.

Annulment of the academic suspension on procedural grounds, however, does not necessarily compel annulment of the athletic suspension (seeAppeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389).  In addition, the athletic suspension, although related to the academic suspension, followed a separate Student Athletic Code of Conduct Agreement (“Athletic Code”) with distinct due process and appeal procedures embodied in the Interscholastic Athletic Handbook (“Handbook”).

In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794; Appeal of Denis, 40 id. 306, Decision No. 14,487; Appeal of Michael J.A., 39 id. 501, Decision No. 14,293).

Petitioners do not dispute that N.C. and his father signed the district’s Athletic Code for the 2006-2007 school year on August 16, 2006, indicating that they had read and understood the requirements of the Handbook.  Paragraph (8) of the Student-Athlete Code of Behavior/Ethics in the Handbook provides: “Remember that the use, abuse and resulting negative influence of drugs, including alcohol, tobacco and performance-enhancing supplements is detrimental to the game and its participants.  To participate in athletics at Peru, there will be no use of these substances.”  Nor do petitioners dispute that they were accorded the opportunity to appeal the athletic suspension to the athletic director, the Steering Committee, and superintendent, in accordance with the Handbook.

Although there are contradictory statements in the record, there is evidence that N.C. admitted at different times that he had consumed alcohol prior to the prom in violation of the Athletic Code.  Specifically, the principal avers that N.C. admitted consuming alcohol during questioning at the prom and at the meeting in her office on May 14, 2007.  The coach avers that he was present during the May 14, 2007 meeting and heard N.C. state that he had had a mixed drink on the night of the prom.  He also avers that on prom night, N.C. nodded his head “yes” when he was asked if he was drinking alcohol before the prom.  In addition, in his May 20, 2007 appeal letter to the athletic director, C.C. states that during questioning at the prom, “N.C. admitted to drinking a drink in a rented limousine although he did not know what was in the drink and he had not mixed the drink.”

Where a student admits the charged conduct, the admission is sufficient proof of guilt (seee.g.Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960; Appeal of P.K., 41 id. 421, Decision No. 14,733).  Furthermore, with respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036; Appeal of K.M., 41 id. 318, Decision No. 14,699).  In this case, both the athletic director and Steering Committee had the opportunity to assess N.C.’s credibility.  On the record before me, I cannot conclude that their determination on credibility is inconsistent with the facts.

In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioners seek 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).  Based on the record before me, I find that petitioners have failed to meet their burden of proving that N.C. did not violate the Athletic Code.  I conclude, therefore, that respondent’s imposition of the athletic suspension was not unreasonable.

THE APPEALS ARE SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the initial five-day suspension of petitioners’ son from May 15 to May 21, 2007 be expunged from his record.

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