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Decision No. 15,756

Appeal of N.H. and E.H., on behalf of their son N.H., from action of the Board of Education of the Central Islip Union Free School District regarding student discipline.

Decision No. 15,756

(June 4, 2008)

Dennis P. Biancanello, Esq., attorney for petitioners

Kevin A. Seaman, Esq., attorney for respondent

AHEARN, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Central Islip Union Free School District affirming the suspension of their son, N.H.  The appeal must be dismissed.

On September 19, 2007, at approximately 2:00 p.m., N.H., a sixth grade student, was involved in an altercation with another student, G.G.  Immediately thereafter, the principal contacted N.H.’s mother, who came to the school shortly after students were dismissed for the day.  The principal explained what had happened, and handed her a letter dated September 19, 2007, advising her that N.H. would be suspended the next day, September 20, and could return to school on September 27.  That letter further advised that an informal conference was available, and indeed encouraged that.  The principal further advised that she intended to recommend a superintendent’s hearing.

By letter dated Monday, September 24, 2007, the interim superintendent advised petitioners that a superintendent’s hearing would be conducted on Thursday, September 27.  Respondent states that a copy of that letter was placed in petitioners’ home mailbox on the evening of September 24 by an assistant principal.  While petitioners deny receiving the letter at that time, the affidavit of the principal states that N.H.’s father telephoned her on the morning of September 25, advised that he had received the letter in the mailbox the previous night, and asked questions about the upcoming hearing.  The September 24 letter was mailed to petitioners on September 25, and they admit receiving it by mail on September 26.  On September 27, a superintendent’s hearing was held.  N.H. was found guilty of assaulting G.G.  By a letter of that same date, the interim superintendent extended N.H.’s suspension through Friday, October 19, 2007.

Thereafter, petitioners appealed the matter to the board of education, which upheld the superintendent’s actions in a determination dated November 14, 2007.  This appeal ensued.

Petitioners challenge both suspensions and seek to have them expunged from N.H.’s record.  Petitioners contend that respondent’s administrators did not comply with Education Law §3214(3)(b)(1) and Commissioner’s regulation §100.2(l)(4) at the time of the initial suspension.  They also contend that they received inadequate notice of the superintendent’s hearing and were denied an adjournment.  They also contend that N.H. was denied a fair hearing because hearsay statements were received at the hearing, and they were thereby denied the right to cross-examine the makers of those statements.

Respondent generally denies any wrongdoing.  Respondent contends that with respect to the initial suspension, N.H. was summarily suspended because the principal believed his presence might cause possible retaliation or other disruption in the school if he were allowed to continue; that the written notice handed to N.H.’s mother on September 19, 2007, was in all respects legally adequate and in compliance with statute and regulations; and that at no time did petitioners request an informal conference with the principal.  Respondent contends that petitioners received written notice of the superintendent’s hearing on the evening of September 24, 2007 and did not at any time seek an adjournment of the hearing.  Respondent further states that N.H. admitted at the hearing that he had committed the offense charged, claimed that he acted in self-defense, but that the facts did not support that defense.  Finally, respondent claims that the oral testimony of N.H. and G.G. together were sufficient to establish guilt, without reliance on the hearsay statements.

With respect to the initial suspension, I find that the principal was justified in suspending N.H. summarily, based on her concerns about the health and welfare of the students if he were allowed to continue.  Indeed, Education Law §3214(3)(b)(1) and §100.2(l)(4) of the Commissioner’s regulations permit an immediate suspension where the student’s presence poses a danger to persons or property or a threat of disruption to the academic process.  In such case, notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practical.  

In this case, by the time N.H.’s mother arrived at school, students had already been dismissed, so there was no immediate opportunity to conduct an informal conference.  The written notice handed to N.H.’s mother gave notice of the nature of the incident and stated:

You are entitled to an informal conference within five days (5) of this letter and you are encouraged to request such a conference with the Principal and any other person involved in this incident.  Please call the Charles A. Mulligan Intermediate School at 348-5043 to arrange an appointment if you wish to exercise this right.

The principal states that no request was made at any time by petitioners for an informal conference, and that she told N.H.’s mother on September 19, 2007 that she intended to recommend a superintendent’s hearing.  Under these circumstances, I find adequate compliance with Education Law §3214, and Commissioner’s regulation §100.2.  While the notice does not specifically refer to “witnesses,” it does specifically refer to “any other person involved in this incident.”

With respect to the notice of a superintendent’s hearing, I conclude that petitioners received notice at their home on the evening of September 24, 2007.  In their petition, petitioners deny such receipt.  However, the principal’s affidavit states:

In fact, parent N.H. contacted me on several occasions on September 25, 2007 regarding the hearing; he advised me that he had received the subject correspondence (in his mailbox) on the prior evening (September 24, 2007)!  Indeed, it was on the basis of his receipt of the letter scheduling the hearing that he initiated phone contact with my office the morning after the letter was left in the mailbox at the residence of the petitioners.  He never requested a postponement of the hearing; he merely questioned what would happen if he did not “show-up”; I advised that I did not know; that I, myself, receive notices of such suspension hearings and “show-up” at the prescribed time and dates.

...

At no time during N.H.’s phone calls with me did he mention anything about the need to secure counsel or seek an adjourning of the hearing.

Petitioners have not served a reply rebutting these statements.  I therefore conclude that petitioners had oral notice on September 19, 2007, that a superintendent’s hearing was being requested by the principal, and had adequate written notice of that upcoming hearing on the evening of Monday, September 24, 2007.

With respect to the conduct of the hearing, it is clear that the testimony of N.H. and the other boy involved in the altercation, G.G., was of primary importance.  Petitioners do not contend that they were deprived of the opportunity to cross-examine G.G.  As noted above, N.H. also admitted that he had struck G.G.

I have examined the brief written statements signed by three other sixth graders that were read at the hearing.  While they differ somewhat, the statements confirm that N.H. repeatedly struck G.G. in the head with a metal lock.  As such, they did not contradict the oral testimony, and were of limited significance.  As the president of the board of education stated in his determination of November 14, 2007:

Certainly, it would have been preferable to have the student-witnesses present to provide testimony and be subject to cross-examination by the parents; however, as these statement [sic] were merely corroborative to the testimony of the Principal and as there was no actual viable issue as to the bodily injury inflicted by [N.H.] upon another student it is not viewed by the Board of Education that such written statements should result in an annulling of the Supt.’s Determination.

As I stated in Appeal of M.A., (47 Ed Dept Rep 188, Decision No. 15,663), by permitting the introduction of written statements in lieu of live testimony, petitioners were deprived of the opportunity to cross-examine those witnesses (Appeal of Coleman, 41 id. 101, Decision No. 14,628; Appeal of Parker, 34 id. 379, Decision No. 13,351).  In that case, it appeared that the decision-maker did not rely on the written statements, and I concluded that the oral testimony was sufficient to sustain the charges.  I further stated that “if the principal did, in fact, rely on the depositions, I find such reliance to be harmless error.”  In this matter, because the very brief written statements did not contradict the oral testimony, I find that even if they were relied upon to some extent that the error was minimal.  However, I remind respondent that in the case of a student disciplinary hearing, it is improper for the hearing officer to consider a witness’s written statement unless the witness is available for cross-examination.

THE APPEAL IS DISMISSED.

END OF FILE