Appeal of M.T., on behalf of his son A.T., from action of the Board of Education of the North Colonie Central School District regarding student discipline.

Decision No. 15,854

(December 12, 2008)

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Colonie Central School District (“respondent”) to uphold the suspension of his son, A.T.  The appeal must be sustained in part.

On February 29, 2008, A.T. was marked absent from school.  Later that day, a hall monitor witnessed A.T. sitting in a car and smoking on school property.  On March 3, 2008, A.T. was observed on school property after cutting class, and when approached by a hall monitor, he allegedly ran out the front door of the school.  Based on these incidents, on March 5, 2008, A.T. was charged with insubordination and tobacco use in violation of respondent’s discipline policy.

A superintendent’s hearing was held on March 11, 2008.  Based on the hearing testimony and evidence presented, the superintendent found that A.T. was “guilty of the acts described in his proposed suspension dated March 5, 2008.”  A.T. was suspended from March 5, 2008 through the first semester of the 2008-2009 school year and was deemed ineligible for summer school.  In addition, under the terms of the suspension, A.T. is required to attend a pre-admittance conference and will be placed on probation for one year upon return to school.

By letter dated March 18, 2008 transmitting his decision, the superintendent informed petitioner that he could appeal to respondent within 10 days.  Petitioner appealed the superintendent’s decision to respondent on May 21, 2008.  By letter dated May 27, 2008, respondent notified petitioner that the appeal was rejected as untimely.  This appeal ensued.

Petitioner contends that the penalty is excessive and that A.T. will probably drop out of school as a result of the suspension.  Petitioner also requests that I excuse his delay in appealing the superintendent’s decision to respondent.  Petitioner seeks A.T.’s return to school and placement in the tenth grade.

Respondent argues that petitioner’s appeal to respondent was untimely and that A.T.’s past behavior warrants the lengthy suspension.

For long-term suspensions in excess of five school days, Education Law §3214(3)(c)(1) provides for a hearing conducted by the superintendent, or a designated hearing officer.  It further provides that the superintendent’s decision, after a hearing, is appealable to the board of education.  Under this statutory scheme, the board of education is the final arbiter at the school district level when a parent or student disagrees with a superintendent’s long-term suspension determination.  A board of education does not have discretion on whether to hear an appeal from a decision of a superintendent regarding a long-term suspension (seeAppeal of J.A., 48 Ed Dept Rep ____, Decision No. 15,810).

While a district may adopt policies governing suspension procedures, such policies must be reasonable and consistent with the right of complainants under Education Law §310 to have disputes ultimately reviewed by the Commissioner (cf. Appeal of Amara S., 39 Ed Dept Rep 90, Decision No. 14,182).  Here, respondent refused to review the superintendent’s long-term suspension of A.T. based on its policy, which requires a parent to appeal to the board within 10 days of the superintendent’s suspension decision.  Thus, the question before me is whether respondent’s policy, on its face and as applied, is reasonable and consistent with the Education Law.  I find that it is not. 

I recognize that a board of education has a legitimate interest in an orderly and efficient process for reviewing suspension determinations.  However, mere administrative convenience cannot justify a rigid 10-day time frame, after which a parent or student is denied the right to contest a suspension nearly one year in length while the student remains out of school.  Not only is respondent’s time frame extremely short, but it provides no discretion for excusing delay in an appropriate case.  Even in an appeal to the Commissioner, a petitioner is given 30 days from the making of the decision or the performance of the act complained of to commence the appeal and the Commissioner may excuse a delay for good cause shown  (8 NYCRR §275.16).  I therefore find that respondent’s policy is inconsistent with the requirements of the Education Law and sound educational policy and must be revised.  Accordingly, I find respondent’s rejection of petitioner’s appeal to be unreasonable and I will consider the merits of petitioner’s claims.

Petitioner contends that the penalty imposed on A.T. is excessive.  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 support of the penalty, respondent points to A.T.’s anecdotal record over the past two years and alleges that the current charges, when considered with A.T.’s past record, warrant the lengthy suspension.  A.T.’s anecdotal record shows a pattern of relatively minor offenses and prior suspensions, none of which appear to involve criminal, physical or other serious misconduct.  While I agree that A.T.’s anecdotal record may have warranted a penalty more significant than would typically be administered for smoking a cigarette and leaving school grounds without permission, a suspension of almost one full year is clearly excessive.  I find that A.T.’s suspension from school since March 5, 2008 is sufficient to impress upon A.T. the seriousness of his misconduct.

Petitioner also seeks A.T.’s placement in tenth grade upon his return to school.  A board of education has broad authority, under Education Law §1709(3) to regulate the admission of students and their transfer from one class to another.  Consistent with that authority, a board has the power to place students in particular classes (Appeal of M.F. and T.L., 44 Ed Dept Rep 467, Decision No. 15,234; Appeal of D.R., 43 id. 409, Decision No. 15,035). The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of M.F. and T.L., 44 Ed Dept Rep 467, Decision No. 15,234; Appeal of D.R., 43 id. 409, Decision No. 15,035).

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).  On the record before me, petitioner has not met his burden of establishing that A.T. should be placed in a certain grade upon his return to school.

It is evident that A.T. faces significant challenges as he continues his efforts towards graduation.   I urge petitioner and respondent to work cooperatively to ensure that A.T. uses this opportunity to return to school in respondent’s district to earn his high school diploma.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent re-admit A.T. to school in the North Colonie Central School District; and

IT IS FURTHER ORDERED that respondent revise its student discipline policies and procedures in accordance with this decision.

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