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Decision No. 16,178

Appeal of K.M., on behalf of her daughter M.M., from action of the Board of Education of the Peru Central School District regarding student discipline.

Decision No. 16,178

(December 9, 2010)

Stafford, Piller, Murnane, Plimpton, Kelleher & Trombley, PLLC, attorneys for respondent, Meghan E. Zedick, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Peru Central School District (“respondent”) to uphold the suspension of her daughter, M.M.  The appeal must be dismissed.

On May 14, 2010, district administrators became aware that M.M. and at least two other students had trespassed on school property by entering the track shed and consuming alcohol there on the night of May 7, 2010 after the middle school dance.  The middle school principal (“principal”) avers that on the morning of May 14, 2010, she interviewed M.M., then an 8th grade student at the district’s middle school, who admitted the conduct.  Thereafter, the principal requested that petitioner and her husband meet with her at school where, according to her affidavit, over the course of approximately one hour, she informed them of M.M.’s admission, permitted them to ask questions regarding the charges, explained the suspension and the rules required to observe it, discussed the availability of home instruction and described the purpose of a superintendent’s hearing.  M.M. was suspended for five days, from May 17 through May 21, 2010.

By letter dated May 17, 2010, the superintendent informed petitioner and her husband that a superintendent’s hearing would be held on May 19, 2010.  M.M. was charged with “[b]eing disorderly, insubordinate and endangering the safety, morals, health and welfare of others under section 3214 of the Education Law” and violating the district’s Code of Conduct (“code”).  Specifically, the charges alleged that on May 7, 2010, M.M. and two other students unlawfully entered the Peru High School Building, and on that date, while on district property, M.M. and two other students consumed alcohol.  The superintendent conducted the hearing, at which M.M. admitted entering the track shed, not the high school, without permission, and consuming alcohol there.

At the conclusion of the hearing, after modifying the facts of the first charge to reflect the change from the high school to the track shed, the superintendent found M.M. guilty of the charges.  After considering recommendations from the principal and the middle school guidance counselor and input from petitioner and her husband, the superintendent recommended that M.M. be permitted to return to school on May 24, 2010 without further out-of-school suspension but that she not be permitted to participate in extracurricular activities until July 1, 2010, including the eighth grade trip and graduation.[1] 

On May 27, 2010, petitioner and her husband appealed to the superintendent, objecting to the alleged excessive and disparate penalty imposed upon their daughter and requesting that she be permitted to attend graduation.  By letter dated May 28, 2010, the superintendent granted their request to permit M.M. to attend graduation contingent on certain conditions.  He also informed them that he would forward their appeal to respondent.  On June 8, petitioner and her husband appealed to respondent, which upheld the superintendent’s May 25, 2010 decision.  This appeal ensued.

Petitioner contends that she did not receive timely written notice of the suspension or the superintendent’s hearing.  She also contends that the penalty imposed on M.M. is inequitable because the other two students involved received lesser penalties and because M.M. was the only student charged with criminal trespass.  Petitioner asserts that M.M.’s disciplinary record contains inaccurate information.  She requests that M.M.’s suspension be annulled and expunged from her record and that the inaccuracies in her disciplinary record be corrected.  Petitioner also seeks disciplinary action against the principal and a written explanation why disparate penalties were imposed.

Respondent contends that the appeal must be dismissed because petitioner has failed to meet her burden of proof.  Respondent asserts that it complied with the Education Law and Commissioner’s regulations, that petitioner received timely notice of both the suspension and superintendent’s hearing, that M.M. admitted the conduct and that the penalty was appropriate.

I must first address two procedural issues.  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  M.M. has served the suspension.  Therefore, except to the extent that petitioner seeks expungement of M.M.’s record, the appeal must be dismissed as moot.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  To the extent that petitioner seeks disciplinary action against the principal, she is a necessary party and should have been joined as such.  Accordingly, petitioner’s claim against the principal must be dismissed for failure to join her.

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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of a F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  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]).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner contends that she did not receive written notice of M.M.’s suspension, including her right to an informal conference, within 24 hours of the verbal notice of suspension.  She claims that the principal’s suspension letter, dated May 14, 2010, was hand-delivered to her son at 8:45 p.m. on May 17, 2010.  The record reveals that petitioner and her husband met with the principal for approximately one hour on May 14, 2010 before the suspension was imposed, and the suspension did not commence until May 17, 2010.  Moreover, the principal avers that following that meeting, she “provided a written notice of suspension . . .  On May 14, 2010, I gave the notice of suspension to Assistant Middle School Principal, [F.S.], to hand deliver to Mr. and Mrs. [M.].”  The letter is dated May 14, 2010.  Petitioner submits no reply or contrary evidence to contradict the principal’s affidavit.  Accordingly, based on the record before me, I find that petitioner has failed to meet her burden of proof that she did not receive timely written notice of M.M.’s suspension.

Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897).   What constitutes “reasonable notice” varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of F.W., 48 Ed Dept Rep 399, Decision No, 15,897; Appeal of a Student with a Disability, 46 id. 385, Decision No. 15,540).  One day’s notice has been held inadequate to provide an opportunity for a fair hearing (Carey v. Savino, 91 Misc.2d 50; Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360).  However, three days’ notice has been found adequate (Appeal of M.A., 45 Ed Dept Rep 206, Decision No. 15,303; Appeal of Lago, 38 id. 723, Decision No. 14,126; Appeal of DeRosa, 36 id. 336, Decision No. 13,741).

Petitioner contends that she was denied her right to due process because she was provided less than 48 hours notice of the superintendent’s hearing.  She asserts that the superintendent’s May 17, 2010 letter scheduling the hearing for May 19, 2010 at 3:00 p.m. was hand-delivered to her son at 8:45 p.m. on May 17, 2010.  Respondent provides an affidavit of service showing that the Notice of Discipline was served on petitioner’s husband at approximately 9:38 p.m. on May 17, 2010.  However, respondent also provides an affidavit from the superintendent’s secretary, who avers that on May 14, 2010, she telephoned petitioner and “informed her that a Superintendent’s hearing would be held the following week and that she would receive written notice of the same on Monday, May 17, 2010.”  In addition, in the timeline provided as part of their June 8, 2010 appeal to respondent, petitioner admits that at their meeting with the principal on May 14, 2010, the principal informed her and her husband that they would have to appear at a superintendents’ hearing.  Accordingly, petitioner had actual notice five days prior to the hearing, which is more than adequate (seeAppeal of Lago, 38 Ed Dept Rep 723, Decision No. 14,126 [notice provided by telephone three days prior to hearing found adequate]; Appeal of DeRosa, 36 id. 336, Decision No. 13,741 [notice provided in person three days prior to hearing found adequate]).

The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).

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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).

Petitioner maintains that the other participants in the incident received lesser penalties than her daughter, and none were subject to criminal charges.  The record reveals that M.M. admitted the charged conduct and petitioner does not dispute the guilty finding.  The code provides that if students violate the Drug/Alcohol rule, “the consequences of their behavior will be to serve the necessary discipline as outlined in the Third Level of Misconduct of this policy.”  Discipline options under the Third Level of Misconduct include out-of-school suspension, possible legal consequences and continuation of Second Level Misconduct, which includes out-of-school suspension, possible legal consequences, in-school suspension and suspension from extracurricular activities.  Thus, on the record before me, I cannot conclude that the penalty imposed was excessive.  The records of other students are not before me.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] The full extent of M.M.’s penalty is unclear.  In the superintendent’s Decision and Order dated May 25, 2010, he determined that M.M. “could return to school on May 24, 2010, to participate in a blend of in-school suspension and regular education curriculum.”  In transmitting that Decision and Order to petitioner and her husband on May 26, 2010, the superintendent entitled the letter “Notice of Determination of Guilt, With No Further Discipline.”  The Notice included the exclusion from extracurricular activities, but omitted any reference to additional in-school suspension (“ISS”).  In their May 27, 2010 appeal to the superintendent, petitioner and her husband indicate that M.M. served two days of ISS, however, the copy of M.M.’s disciplinary record petitioner provides indicates that M.M. served only five days of suspension.