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Decision No. 16,105

Appeal of E.S., on behalf of his son E.S., from action of the Board of Education of the Lynbrook Union Free School District regarding student discipline.

Decision No. 16,105

(July 27, 2010)

Ketover & Associates, LLC, attorneys for petitioner, Joshua S. Ketover, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lynbrook Union Free School District (“respondent”) to uphold the suspension of his son, E.S.  The appeal must be dismissed.

E.S. was a 9th grade student in respondent’s Lynbrook High School during the 2008-2009 school year.  On April 7, 2009, E.S. was called to the principal’s office after the principal learned that a number of students had been speaking about a video posted on the Internet by E.S. which showed a class in session in Lynbrook High School.  At the principal’s request, E.S. forwarded to the principal the video that had been recorded by a classmate on E.S.’s camera and posted on E.S.’s Facebook page.  The video recorded the teacher interacting with and being interrupted by students with non-class related comments and questions.  Later that same day, the principal visited E.S.’s classroom and advised the class to exercise care in posting videos on social networking sites.  The principal told the class that new rules addressing the specific act of making videos of classroom activities would probably be forthcoming.

On April 16, 2009, petitioner received a letter from the principal advising that E.S. was suspended for five days beginning Tuesday April 21 through Monday April 27, 2009 for acting in concert with another student to surreptitiously digitally record his Italian class without the consent of the classroom teacher and the parents of the other students in the classroom.  The letter further indicated that E.S. was being suspended for supplying the camera used to record the class and making it available on Facebook.  The letter advised that petitioner and E.S. would have the opportunity for an informal conference with the principal on April 20, 2009, prior to the imposition of the suspension.  Following an informal conference with petitioner and his wife, the principal suspended E.S. on April 21, 2009 but reduced the length of the suspension to three days.

By letter to the superintendent dated April 24, 2009, petitioner’s counsel requested a hearing to challenge the suspension.  In a second letter dated May 21, 2009, petitioner’s counsel requested that reference to the suspension from April 21 to 24, 2009 be expunged from E.S’s school records.  The superintendent denied the request for expungement on June 17, 2009.  On June 30, 2009, petitioner’s counsel requested a hearing before respondent.  By letter dated July 7, 2009, the district clerk informed petitioner’s counsel that respondent would not hold a hearing but would consider a written appeal.  Respondent considered the appeal at its October 14, 2009 meeting and affirmed the superintendent’s determination.  This appeal ensued.

Petitioner contends that he was not provided notice of his right to question witnesses at the informal conference and that E.S. was charged with conduct that was not prohibited by respondent’s code of conduct at the time it occurred.  Petitioner argues in his memorandum of law that the April 16, 2009 notice was mailed and therefore is defective.  Petitioner asserts that the code of conduct was revised on July 7, 2009 to add a new provision that prohibits “using any type of recording device in any manner that interferes with or is disruptive of the education process or invades the privacy of students, employees, volunteers, or visitors.” 

Respondent admits that the principal’s April 16, 2009 notice did not advise petitioner of his right to question complaining witnesses but argues that petitioner had an informal conference with the principal who was the complaining witness.  Respondent asserts that the informal conference served its intended purpose of allowing the principal to consider whether to correct or modify the suspension and was beneficial to petitioner because it reduced the length of the suspension.  Respondent admits that the code of conduct was amended in July 2009 but asserts that E.S. was suspended for conduct that was a violation of the code of conduct as it existed prior to the amendment because it prohibited conduct “that may endanger the health or safety of pupils within the educational system or adversely affect the educational process.”  Respondent contends that disorderly conduct included “engaging in any willful act which disrupts the normal operation of the school community” and that the code also required students to engage in conduct “based on the principles of civility, mutual respect, citizenship, character, tolerance, honesty and integrity.”  Respondent also argues that E.S.’s conduct violated other sections of the code of conduct prohibiting inappropriate Internet behavior, the use of cellular phones in school and harassment.  Respondent contends that petitioner waived the claim of defective notice by not raising it in his appeal to the superintendent.  Respondent also objects to alleged additional assertions in petitioner’s memorandum of law. 

Initially, I must address respondent’s objection to petitioner’s memorandum of law.  Specifically, respondent asserts that petitioner’s memorandum of law inappropriately raises for the first time the method of delivery of the suspension notice.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Therefore, while I have reviewed petitioner’s memorandum of law, I have not considered those portions containing new allegations not stated in the petition.

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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).  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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).

Petitioner contends that the April 16, 2009 notice failed to advise of the right to question complaining witnesses.  The record shows that petitioner and his wife met with the principal on April 20, 2009, before the suspension was imposed.  The principal investigated the incident, interviewed petitioner’s son, viewed the video in question, addressed the student’s class and determined that a suspension was warranted.  Thus, the principal was the complaining witness in this case and therefore, petitioner was given the opportunity to meet with the complaining witness before the suspension was imposed (seeAppeal of C.C. and R.C., 47 Ed Dept Rep 295, Decision No. 15,701 and Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  Moreover, the purpose of the written notice requirement was served here because the informal conference afforded the principal the opportunity to decide whether his original decision was correct and to modify the suspension by reducing its length.

Petitioner’s claim that the behavior for which his son was suspended was not prohibited by respondent’s code of conduct is without merit.  The superintendent’s June 17, 2009 letter denying petitioner’s request to rescind the suspension and expunge his son’s record detailed how the student’s behavior was in violation of several provisions of the code of conduct, as it existed at the time of the incident.  The letter cited the code’s prohibition against conduct “that may endanger the health or safety of pupils within the educational system or adversely affect the educational process” and indicates that this includes harassment and inappropriate behavior on the Internet.  The superintendent determined that the behavior also violated the code prohibition against “engaging in any willful act which disrupts the normal operation of the school community” by subjecting a faculty member to embarrassment and ridicule, thereby undermining authority and ability to maintain classroom discipline, as well as by becoming a major topic of conversation throughout the school, affecting its normal operation.  The student’s behavior was also found to violate the code provision requiring student conduct to be “based on principles of civility, mutual respect, citizenship, character, tolerance, honesty and integrity” because the classroom activity was recorded and the video displayed without the knowledge or consent of the teacher and other students.

I find that any of these violations of the code would be sufficient to warrant suspension of the student.  Thus, I decline to overturn respondent’s determination upholding the three day suspension.

I have considered petitioner’s remaining contentions and found them without merit.

THE APPEAL IS DISMISSED.

END OF FILE.