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Decision No. 15,701

Appeal of C.C. and R.C., on behalf of their daughter K.C., from action of the Board of Education of the Peru Central School District regarding student discipline.

Decision No. 15,701

(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.--Petitioners challenge the suspension of their daughter, K.C., by the Board of Education of the Peru Central School District (“respondent”).  The appeal must be sustained.

On May 12, 2007, K.C., a 15 year-old sophomore, attended the Peru High School junior prom via limousine along with her brother, N.C., and several other students (seeAppeals of C.C. and R.C., 47 Ed Dept Rep ___, Decision No. 15,700).  According to the principal, who was present, several students, including K.C., were so intoxicated at the prom that their parents had to be called, and several ambulances had to be summoned.  In K.C.’s case, she vomited repeatedly during the prom and was taken to an ambulance.  After her parents arrived, she was removed from the ambulance and left the prom with her parents.

On Monday, May 14, 2007, the principal met with C.C. and K.C.  By letter dated May 15, 2007, the principal suspended K.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)” in violation of the Student Handbook and the District School Conduct and Discipline Policy.

By letter dated May 16, 2007, petitioners appealed the suspension to the superintendent.  They also requested that the superintendent reduce K.C.’s suspension by one day, claiming that since K.C. was not allowed to attend school on Monday, May 14, 2007, her suspension through May 21, 2007 amounted to six days.  By letter dated May 17, 2007, the superintendent denied the appeal, but permitted K.C. to resume attendance on May 21, 2007.  Petitioners appealed this determination to respondent.  By letter dated June 13, 2007, the district clerk informed petitioners that on June 12, 2007, respondent upheld the superintendent’s determination.  This appeal ensued.

Petitioners 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 K.C.’s suspension, dated May 15, 2007, was sent by regular mail and failed to include their rights to confront witnesses or to have an informal conference in accordance with Education Law §3214(3)(b)(1).  They further contend that respondent failed to provide K.C. with alternative education during her suspension in accordance with Education Law §3214(3)(e).  Petitioners request that the suspension be reversed and expunged from K.C.’s record.

Respondent asserts that the suspension was appropriate and lawful and that K.C. was accorded her due process rights.  The principal asserts that K.C. violated the District’s Code of Conduct in that she admitted consuming alcohol in the limousine prior to the prom.  Respondent also states that it offered K.C. alternative education but she did not attend the arranged sessions.

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 K.C. met with the principal on May 14, 2007 before the suspension was imposed.  The principal observed K.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 K.C. were given the opportunity to meet with the complaining witness against K.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 K.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’ remaining contentions.  I note, however, that the record reflects that the district met its obligation to provide alternative instruction but K.C. did not avail herself of four of the hours offered.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

END OF FILE