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Decision No. 16,385

Appeal of T.B., on behalf of his son D.B., from action of the Board of Education of the South Huntington Union Free School District regarding student discipline.

Decision No. 16,385

July 27, 2012

Rivkin Radler, LLP, attorneys for petitioner, Frank Raia, Esq., of counsel

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

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

On the evening of March 18, 2010, the principal of the district’s Henry L. Stimson Middle School (“school”) contacted petitioner by telephone to inform him that D.B. would be suspended from school for five days commencing March 19, 2010.  According to petitioner, the principal offered him the opportunity to participate in a conference, and, in a subsequent telephone call later that evening, informed him that he could attend a conference the following day with the assistant principal.

The next day, on March 19, 2010, petitioner met with the dean of students and assistant principal, who informed him that, after an investigation, other students, in written statements, had implicated petitioner’s son in a series of hazing incidents involving fellow members of D.B.’s volleyball team.[1] Petitioner claims that only he and his son were present at the meeting and that the assistant principal did not advise him that he was authorized to question complaining witnesses.

By letter to petitioner dated March 19, 2010, the principal suspended D.B. 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 petitioner of a superintendent’s hearing scheduled for March 23, 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.B. engaged in the conduct charged.

At the hearing on March 23, 2010, the district’s counsel entered into evidence the superintendent’s March 19, 2010 letter “not for the truth of the allegations, but merely setting forth the reason why we’re here today.”  Petitioner’s then-counsel (although current counsel was also present unofficially as a “family friend”) informed the hearing officer that respondent had agreed to drop charges 1, 2 and 4, and to pursue only the third charge of endangering the safety, morals, health or welfare of another student(s).  Thereafter, petitioner’s counsel submitted a plea of “no contest” on D.B.’s behalf, adding that “[e]ssentially, he apologizes for all the time and effort that the School District personnel has taken throughout today and the preceding week, including the Assistant Superintendent, the principal, the dean, and the assistant principal.”[2]

The hearing officer determined that, “[a]s our student [D.B.] is pleading no contest, as Hearing Officer, then I just will find him guilty of just the one charge.”  Petitioner’s counsel disagreed with the guilty determination, stating that D.B. was neither “admitting or denying [the charge]”, just “not contesting the charge.”  No witnesses or documents were introduced or entered into the record by either party other than the superintendent’s letter.  After learning from the dean that D.B. had no prior disciplinary history, the hearing officer referred the matter to the superintendent for a determination of any additional penalties.[3]

By letter dated March 30, 2010, the superintendent notified petitioner that he was suspending D.B. through March 26, 2010, and that D.B. could return to school on April 6, 2010.[4]  He also imposed an athletic suspension on D.B. for the remainder of the 2009-2010 school year and the fall semester of the 2010-2011 school year, although he offered D.B. the opportunity to participate in sports for the fall 2010-2011 season if certain conditions were met.[5] Petitioner appealed to respondent, which upheld the superintendent’s determination but did not require D.B. to answer the last essay question about sexual harassment.  This appeal ensued.

Petitioner contends that the five-day suspension must be expunged from D.B.’s record because the notice was untimely and he was deprived of his rights to an informal conference with the principal, to question the complaining witnesses and to review the statements of the other students.  He also contends that the one remaining charge of endangering was too vague and insufficient to apprise D.B. of the activities giving rise to the hearing; that respondent produced no evidence of D.B.’s guilt and that the “no contest” plea is not an admission and is insufficient proof of guilt.  Petitioner asserts that the hearing officer abused her power and discretion in finding D.B. guilty; that the superintendent improperly based his determination on “witnesses and documentation” that were never introduced at the hearing; and that the additional penalty was unwarranted.  Petitioner requests that I consider D.B.’s written statements that were not introduced at the hearing in which he denies participation in the events of March 16, 2010.  Petitioner seeks annulment and expungement of the academic and athletic suspensions from D.B.’s records.

Respondent contends that the petition fails to state a claim upon which relief may be granted.  Respondent asserts that D.B. was afforded appropriate due process and that the penalty was proportionate to the offense.  Respondent asserts that the appeal is moot in light of D.B.’s plea and because D.B. has already served the suspension and returned to school.

I will first address a procedural issue.  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 petitioner seeks expungement of D.B.’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).

By letter dated March 19, 2010, the first day of D.B.’s suspension, the principal sent written notice of D.B.’s five-day suspension to petitioner.  The principal states in an affidavit that she telephoned petitioner on the evening of March 18 to inform him of D.B.’s suspension, which was to begin on March 19, 2010.  Although the principal avers that, during her telephone call, she offered petitioner the opportunity to request an informal conference with her to discuss the matter, petitioner denies that she did so.  Even if the principal did make such an offer, she admits that she was unavailable to meet with petitioner until Monday, March 22, 2010, the second day of the suspension, because she had jury duty on March 19, 2010.  Petitioner met with the assistant principal on March 19, 2010.  However, such a meeting with an assistant principal cannot substitute for a timely 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 petitioner was not afforded timely written notice and an opportunity for an informal conference with the principal prior to the suspension, the short-term suspension must be expunged.

Respondent argues in its answer that D.B.’s presence in school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process such that prior notice and a conference were not required.  However, the principal’s letter did not so state and the record is devoid of any such evidence.  Therefore, D.B.’s suspension from March 19 through March 25, 2010 must be expunged from his record.[6]

Although the initial five-day suspension must be expunged, that does not entirely resolve the matter, however, because a long-term suspension was imposed following a superintendent’s hearing.

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).  Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings (Bd. of Educ. of Monticello Cent. School Dist. at 136).

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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).

Education Law §3214(3)(c)(1) requires that for a suspension of five days or more, a superintendent’s hearing be held, after which, ”[a]n 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.”

Petitioner first contends that the charge to which D.B. pled “no contest” is too vague.  After respondent dropped three charges, the only remaining charge was that, on March 16, 2010 and on a series of other dates during the 2009-2010 school year, D.B. endangered the safety, morals, health or welfare of another student(s).  I note that the transcript reveals that the parties agreed to drop three of the four charges prior to the commencement of the hearing (see footnote 2 above).  While petitioner raised this claim of vagueness in his appeal to respondent, the record reveals that, although represented by counsel, petitioner failed to raise it before the hearing officer at the hearing and, in fact, agreed to enter a plea with no such objection.  Nor did petitioner attempt to enter into the record D.B.’s written statements, which petitioner now claims demonstrate that D.B. did not engage in the charged conduct on March 16, 2010, and which he requests that I now consider.

However, since petitioner failed at the hearing to dispute the specificity of the remaining charge and also failed to enter D.B.’s written statements into the record, neither the issue of vagueness nor those documents were properly part of the record before the board; thus, to the extent they may have been presented to respondent, respondent should not have considered them, and they may not now be considered as part of this appeal (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]).

Petitioner next asserts that the “no contest” plea submitted on D.B.’s behalf is neither sufficient proof nor an admission of D.B.’s guilt, and contends that the hearing officer erred in finding D.B. guilty.  I disagree.  New York State Criminal Procedure Law does not provide for a “no contest” plea (see McKinney’s Criminal Procedure Law §220.10).  Nevertheless, the courts have recognized that an individual’s “no contest” plea amounts to “an admission of the facts as charged” (Kufs v. State of New York Liquor Authority, 637 NYS2d 846 at 847 [citations omitted]).  The court in that case held that “[b]y entering [his] ‘no contest’ plea, petitioner waived [his] right to a review of the facts upon which the punishment was imposed” (Kufs v. State of New York Liquor Authority, 637 NYS2d 846 at 847 [citations omitted]).

Previous Commissioner’s decisions have recognized that under certain conditions, parents may waive a student’s due process rights under Education Law §3214 (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818; Appeal of a Student Suspected of Having a Disability, 41 id. 390, Decision No. 14,722).  For such a waiver to be valid, however, it must be "voluntary, knowing and intelligent" (Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976).  The district must provide the student and parents with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818).

In those cases, petitioners waived their rights to a hearing altogether, and, as stated in Appeals of McMahon and Mosely, et al., opted to “accept the findings and proposed disposition of the district” (Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976).  In sharp contrast, petitioner and D.B. did not waive their due process rights to a hearing, but rather, proceeded to the appointed date and time of the hearing and, after being fully apprised of their due process rights by the hearing officer, chose to enter a plea on the record.  In addition, petitioner and D.B. had not agreed in advance of the hearing to respondent’s findings or proposed disposition.

Although a review of previous Commissioner’s decisions reveals few cases involving “no contest” pleas in student disciplinary proceedings, those pleas have been upheld as valid when entered into knowingly and voluntarily (seeAppeal of Martha and Peter F., 39 Ed Dept Rep 545, Decision No. 14,305 [appeal dismissed where petitioners’ counsel entered a “no contest” plea without an admission of guilt and knowingly and voluntarily entered into stipulations regarding the charges and penalty]).

As noted above, the procedural protections accorded students in a student discipline hearing do not need to reach the level of those in a criminal trial.  Nothing in the record indicates, nor does petitioner argue, that D.B.’s “no contest” plea was not entered in a voluntary, knowing and intelligent manner.  Accordingly, I find no reason to annul the hearing officer’s determination.

However, the superintendent did not render his determination until March 30, 2010, one week after the March 23 hearing and three school days after the short-term suspension ended on March 25.  While the delay in rendering the disposition would not be a basis for overturning the suspension, a continued exclusion from school after the hearing and short-term suspension and prior to the issuance of the superintendent’s determination on March 30 is 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, 2010, must be expunged from D.B.’s record.

Finally, suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  A board of education has broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it can be shown that the board has abused its discretion, the policy will be upheld (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of D.K., 48 id. 276, Decision No. 15,857).

In this case, D.B. pled “no contest” to the charges.  Accordingly, to the extent the athletic suspensions are part of D.B.’s record, they are upheld and not expunged.

In light of this 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.B. from March 19 through March 26, 2010, be annulled and expunged from his record.

END OF FILE.

[1] The involvement of other students in this incident is also the subject of three related appeals (seealsoAppeal of G.B. and B.B., 52 Ed Dept Rep, Decision No. 16383; Appeal of T.T. and K.T., 52 id., Decision No. 16386; Appeal of S.Z. and K.Z., 52 id., Decision No. 16384).

[2] In a letter dated March 24, 2010 to the district’s counsel, petitioner’s then-counsel states that they were prepared to go forward on the one charge based solely on D.B.’s voluntary statements given to the school district; these statements were not entered into the record by either party.

[3] There is no report or recommendation by the hearing officer in the record.

[4] Respondent states that the suspension was continued for only one additional day (March 26) because there was a spring recess from March 29 through April 5, 2010.

[5] 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?

[6] Since this suspension is expunged for these reasons, I need not address petitioner’s other allegations regarding the short-term suspension, including his inability to question complaining witnesses and to review the other students’ written statements, but I remind respondent of its obligations to comply with the statute and regulations.