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Decision No. 16,384

Appeal of S.Z. and K.Z., on behalf of their son D.Z., from action of the Board of Education of the South Huntington Union Free School District regarding student discipline.

Decision No. 16,384

July 27, 2012

John J. McGrath, Esq., attorney for petitioners

Ingerman Smith, L.L.P., attorneys for respondent, Michael G. McAlvin, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the South Huntington Union Free School District (“respondent”) to uphold the suspension of their son, D.Z.  The appeal must be sustained in part.

During the 2009-2010 school year, D.Z. attended the district’s Henry L. Stimson Middle School (“school”) and was a member of the volleyball team.  On March 16, 2010, an incident occurred in the boys’ locker room after the team returned to school following an away game.  According to testimony elicited at the subsequent superintendent’s hearing, the alleged victim’s mother informed the volleyball coach that team members had humped and “tea-bagged”[1] her son, another team member.  The coach contacted the athletic director, who that evening notified the school’s administrative dean (“dean”).

The following morning, the dean notified the assistant principal and principal, who directed the dean and assistant principal to commence an investigation.  The dean and assistant principal gathered team members in a room and requested that they write statements about whether they had seen or been involved with any incident in the locker room the night before, including listing anyone who might have been involved.  Upon reviewing the statements, the dean and assistant principal determined that the statements were too general but noticed that some students referred to other events, in addition to the one the previous day, and also used the phrase “tea-bagging.”  The two administrators then asked those students to write a second, more detailed, statement specifically about the incident on March 16, 2010, and also about whether they were aware of any other incidents that had taken place during the volleyball season.  Certain individuals were named repeatedly in the second statements as being involved in similar locker room incidents.  After reviewing these statements, the dean and assistant principal determined that some students were not involved in any incidents and those students were released.  However, the dean and assistant principal asked the remaining students, including D.Z., for a third statement describing their own involvement in any tea-bagging incidents during the season and/or on March 16, 2010.[2] As a result of this investigation, D.Z. produced three written statements.

On the evening of March 18, 2010, the principal contacted D.Z.’s mother by telephone to inform her that D.Z. would be suspended from school for five days commencing March 19, 2010.  By letter to petitioners dated March 19, 2010, the first day of D.Z.’s suspension, the principal suspended D.Z. for five days, from March 19 through March 25, 2010, for: “1) Intimidation of another student(s) including Title IX violations; 2) Bullying of another student(s); 3) Endangered [sic] the safety, morals, health or welfare of another student(s); and 4) Harassment of another student(s).”  In a separate letter dated the same day, the superintendent notified petitioners of a superintendent’s hearing scheduled for March 24, 2010, to consider the same four charges listed in the principal’s letter; the only difference between the two letters was an additional phrase in the superintendent’s letter preceding the charges, that "on the 16th day of March 2010 and on a series of other dates during the 2009-2010 school year,” D.Z. engaged in the conduct charged.

On March 24, 2010, a hearing was held at which the dean testified and described the investigation and his interview with D.Z., and introduced into evidence and read into the record D.Z.’s three written statements.  The hearing officer found D.Z. guilty of the charges and referred the matter to the superintendent for a penalty determination.  By letter dated March 30, 2010, the superintendent notified petitioners that he was suspending D.Z. through April 9, 2010.[3] He also imposed an athletic suspension on D.Z. for the remainder of the 2009-2010 school year and the fall semester of the 2010-2011 school year, although he offered D.Z. the opportunity to participate in sports for the fall 2010-2011 season if certain conditions were met.[4] Petitioners appealed to respondent, which denied their appeal but did not require D.Z. to answer the last essay question about sexual harassment.  This appeal ensued.

Petitioners contend that the five-day suspension must be expunged from D.Z.’s record because the notice was untimely and improperly delivered, and notice of the charges was insufficient.  They contend further that the charges in the superintendent’s letter were vague and failed to notify D.Z. that his conduct violated the district’s code of conduct (“code”); that respondent failed to conduct the required annual review of its code and, therefore, any violations of the code are procedurally defective and must be dismissed; and that the superintendent’s letter and D.Z.’s statements introduced as evidence at the hearing were not properly authenticated.  They also assert that the hearing officer:  should have recused herself because she had participated in the investigation and, as the district’s Title IX officer, failed to properly investigate the Title IX claims; failed to recommend a penalty to the superintendent; and had prior knowledge of the matter and considered outside material in reaching her determination and was therefore not impartial.  Petitioners also contend that D.Z. was improperly suspended between March 25 and March 30, when the superintendent rendered his determination, and that respondent was negligent in hiring an unlicensed coach.  Petitioners seek annulment and expungement of the academic and athletic suspensions from D.Z.’s records.

Respondent contends that the appeal must be dismissed as untimely, for improper service beyond the prescribed hours in the Commissioner’s regulations and for failure to state a claim upon which relief may be granted.  Respondent asserts that its decision to suspend D.Z. was based on competent and substantial evidence, that petitioners were afforded appropriate due process, and that the penalty was not excessive.  It also asserts that the appeal is moot because D.Z. has already served the suspensions.

I must first address several procedural issues.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Here, the answer was served on June 7, 2010, making the reply due on June 21, 2010; however, petitioners did not serve the reply until June 28, 2010.  Although petitioners’ counsel offers as an excuse for the delay that he was injured and could not work, that injury did not occur until June 22, 2010, after the reply was due.  Therefore, I will not consider the reply.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Respondent contends that the appeal must be dismissed as untimely because petitioners did not serve the petition until May 18, 2010, more than thirty days after respondent rendered its determination on April 14, 2010, and because petitioners’ counsel’s excuse for the delay - that petitioners did not hire him until May 13, 2010 - does not constitute good cause.

However, the Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

The record indicates that while respondent may have made its determination on April 14, its letter to petitioners is dated April 15, 2010.  Second, the record is devoid of evidence as to when petitioners received respondent’s April 15 letter.  Accordingly, affording the usual five days for mailing, the date of receipt would be April 20, 2010.  Petitioners thus had to commence their appeal on or before May 20, 2010, which they did.  Consequently, I will not dismiss the appeal as untimely.

Respondent asserts in its answer that petitioners improperly served the petition “at approximately 9:25 p.m.”  Section 275.8(a) of the Commissioner’s regulations requires service of the petition between 6:00 a.m. and 9:00 p.m.  According to the copy of the affidavit of service attached to the petition, the petition was served upon respondent’s president at approximately 8:45 p.m.  Respondent has provided no evidence or affidavit to the contrary.  Accordingly, the petition was served within the prescribed time period and was properly served.

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).  The suspensions from school and extracurricular activities have been served and, therefore, the appeal is moot, except to the extent petitioners seek expungement of D.Z.’s record (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).

I turn now to the merits.  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 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]).  Oral communication with a parent regarding a suspension is not a substitute for the required written notification (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

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 a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).

By letter dated March 19, 2010, the first day of D.Z.’s suspension, the principal sent written notice of D.Z.’s five-day suspension to petitioners.[5] The principal states in an affidavit that she telephoned D.Z.’s mother on the evening of March 18 to inform her of D.Z.’s suspension, which was to begin on March 19, 2010.  The principal also avers that she offered petitioners the opportunity to participate in an informal conference with her to discuss the matter, but admits that she informed them that she was unavailable until Monday, March 22, 2010, the second day of the suspension, because she had jury duty on Friday, March 19, 2010.  While she states that she offered petitioners the opportunity to meet with the assistant principal on March 19, 2010, a meeting with an assistant principal, whenever it occurs, cannot substitute for a meeting with the principal as required by the statute and regulation (Education Law §3214[3][b]; 8 NYCRR §100.2[l][4]; Appeal of V.R. and C.R., 43 Ed Dept Rep 99, Decision No. 14,934; Appeal of A.L., Jr. 42 id. 368, Decision No. 14,883).  Accordingly, because petitioners were not afforded timely written notice and an opportunity for an informal conference with the principal prior to the suspension, the suspension from March 19 through March 25, 2010 must be expunged from D.Z.’s record.  Since that suspension is expunged, I need not address the sufficiency of the charges contained in the principal’s notice of the five-day suspension.

Although the initial five-day suspension must be expunged, that does not entirely resolve the matter, because a long-term suspension was subsequently imposed following a superintendent’s hearing.  Petitioners allege that the charges in the superintendent’s March 19, 2010 letter were vague and did not refer to violations of the code.

There is no requirement that a disciplinary notice cite a specific provision of respondent’s code (Appeal of L.L., 45 Ed Dept Rep 217, Decision No. 15,306).  Moreover, the charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing” (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).

Education Law §3214(3)(c)(1) requires that for a suspension of five days or more, a superintendent’s hearing be held, after which, “an appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.  The board may adopt in whole or in part the decision of the superintendent of schools.”

I find that, in this case, the superintendent’s notice was sufficient for petitioners to prepare an effective defense.  Moreover, petitioners did not object to the notice at the hearing and since the record does not include petitioners’ appeal to respondent, there is no evidence that the issue of vagueness was raised on appeal to respondent.  As a result, this claim cannot be raised before me in an appeal pursuant to Education Law §310 denovo (Education Law §3214[3][c][1]; Appeal of C.M., 50 Ed Dept Rep, Decision No. 16,142; Appeal of R.C., 49 id. 275, Decision No. 16,023; Appeal of P.K., 41 id. 421, Decision No. 14,733; seealsoFarabell v. Town of Macedon, 877 NYS 2d 796 [petitioner waived contention that charge was fatally vague by failing to request greater specificity or additional time to prepare defense either before or during hearing]).  Similarly, there is no evidence that petitioners’ other allegations regarding the code, the hearing officer and coach were raised below, and, therefore, they are not properly before me.  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).  I find that petitioners have failed to meet their burden of establishing that these issues are properly before me, or that they have any legal merit.

Although petitioners do not specifically challenge the hearing officer’s determination of guilt or the penalty imposed, I note that, upon my review of the record, I find sufficient proof of D.Z.’s guilt and that the penalty is not excessive.  Petitioners do, however, object to D.Z.’s continued suspension from the end of the short-term suspension until the superintendent rendered his determination on March 30, 2010.  While the delay in rendering the disposition is not a basis for overturning the suspension in its entirety, D.Z.’s continued exclusion from school for three school days after the expiration of the short-term suspension on March 25 and prior to the issuance of the superintendent’s determination was improper (Appeal of L.P., 50 Ed Dept Rep, Decision 16,252; Appeal of V.C., 45 id. 571, Decision No. 15,419).  Accordingly, the suspension for March 26 through March 30, 2010, must be expunged from D.Z.’s record.  However, to the extent the athletic suspensions are part of D.Z.’s record, they are upheld and not expunged.

Although as described above, petitioners’ claims regarding the hearing officer are not properly before me, I note that a hearing officer's mere possession of prior knowledge is not a violation of D.Z.’s due process rights (Appeal of Meredith, 33 Ed Dept Rep 530, Decision No. 13,138).  Due process is not violated unless the hearing officer with prior knowledge of the underlying event allows this prior knowledge to improperly influence her decision or uses her prior knowledge as a basis for her decision as an alternative to evidence presented during the hearing (Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241; Appeal of Meredith, 33 Ed Dept Rep 530, Decision No. 13,138).

The hearing officer averred that, while she was aware of the investigation and that petitioners’ son was allegedly one of the students involved, she “did not allow my prior knowledge of the aforementioned investigation to influence my determination of guilt or, for that matter, to act as a basis for my determination that Petitioner was guilty of the open charges.”  Other than their conclusory allegations, petitioners have not established that the hearing officer improperly based her determination on evidence outside the hearing record, which, as noted above, supports the determination of guilt.  Accordingly, the record indicates no bias or impropriety on the part of the hearing officer.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the suspension of D.Z. from March 19 through March 30, 2010, be annulled and expunged from D.Z.’s record.

END OF FILE.

[1] According to Wikipedia, “tea-bag” is “a slang term for the act of a man placing his scrotum ... onto the face or head of another person; ... it has been used during hazing or bullying incidents with reports including groups holding down victims while the perpetrator” engages in such act.

[2] The involvement of other students in this incident is also the subject of three related appeals (seealsoAppeal of T.B., 52 Ed Dept Rep, Decision No. 16,385; Appeal of T.T. and K.T., 52 id., Decision No. 16,386; Appeal of G.B. and B.B., 52 id., Decision No. 16,383).

[3] Respondent states that the suspension was continued for only five additional days (March 26 plus April 6 through 9) because there was a spring recess from March 29 through April 5, 2010.

[4] Those conditions were:  participation in “Sensitivity Training” and completion of a 500-word essay answering five questions:  What is sexual harassment?; List some causes of sexual harassment; What is meant by the phrase “Boys will be boys?”; What are your responsibilities with respect to sexual harassment?; and Why were you accused of sexual harassment?

[5] Petitioners allege that the principal’s letter was improperly sent by regular mail.  Although respondent asserts that the letter was properly sent by certified mail, its copy of the letter in its exhibit A contains a blank void in the upper right corner and thus lacks evidence of delivery method.  While I need not address this issue because the five-day suspension is expunged on other grounds, I note that, in any event, receipt of the letter would not have preceded the suspension, as required.  Accordingly, I remind respondent of its obligation to comply with the statute and regulation in all respects.