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Decision No. 16,386

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

Decision No. 16,386

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, S.T.  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 S.T.’s mother by telephone to inform her that S.T. would be suspended from school for five days commencing March 19, 2010.  The principal avers that she informed S.T.’s mother about an investigation that had ensued after a fellow member of S.T.’s volleyball team (“the victim”) had been attacked in the locker room on March 16, 2010.  According to the principal, other students had implicated S.T. and S.T. had admitted his involvement in writing.[1]

By letter to petitioners dated March 19, 2010, the principal suspended S.T. 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,” S.T. engaged in the conducted charged.  On March 22, 2010, petitioners met with the principal and assistant principal.[2]

Petitioners requested an adjournment of the hearing to obtain counsel.  Accordingly, the hearing was delayed until March 26, 2010.  At the hearing, the hearing officer read into the record the charges, reviewed S.T.’s due process rights, and described the two phases of the hearing.  Thereafter, petitioners’ then-counsel[3] read into the record a statement that S.T. had written in the course of the district’s investigation, that “[a]fter the third game, we held down [the victim].  That was the only time I was involved in those actions.  I never did anything before or after the third game.”  Petitioners’ counsel then pled “no contest” on S.T.’s behalf.

On March 26, 2010, the hearing officer issued a one-page report noting that S.T. pled “no contest” and sustaining the charges.  She recommended that a further suspension should be imposed and referred the matter to the superintendent for a determination of any additional penalties.

By letter dated March 30, 2010, the superintendent notified petitioners that he was suspending S.T. through April 9, 2010, and that S.T. could return to school on April 12, 2010.[4] He also imposed an athletic suspension on S.T. for the remainder of the 2009-2010 school year and the fall semester of the 2010-2011 school year, although he offered S.T. the opportunity to participate in sports for the fall 2010-2011 season if certain conditions were met.[5] Petitioners appealed to respondent, which upheld the superintendent’s determination but did not require that S.T. answer the last essay question about sexual harassment.  This appeal ensued.

Petitioners contend that the five-day suspension must be expunged from S.T.’s record because the notice was untimely and improperly delivered.  They also contend that S.T. was improperly suspended for an additional day before the hearing and for two school days between the conclusion of the hearing on March 26 and March 30 when the superintendent rendered his determination.  They assert that they were deprived of their rights to due process because the hearing officer failed to advise them of their rights before accepting S.T.’s plea, failed to determine a penalty, and failed to recuse herself because she had been involved in the investigation as the district’s Title IX officer.  Petitioners also assert that respondent failed to conduct the required annual review of its code of conduct (“code”) and, therefore, any violations of the code are procedurally defective and must be dismissed, that respondent was negligent in hiring an unlicensed coach, and that the charges against S.T. are too vague.  Petitioners seek annulment and expungement of the academic and athletic suspensions from S.T.’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 petitioners were afforded appropriate due process, that the penalty was proportionate to the offense and that the appeal is moot in light of S.T.’s plea and because S.T. has already served the suspensions and returned to school.

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, the record shows 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 counsel’s excuse for the delay, namely, 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 that petitioners failed to properly serve the petition because it contends that the petition was served “a little after 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 respondent’s answer, the petition was served upon respondent’s president at 8:45 p.m.  Accordingly, the petition was properly served within the prescribed time period.

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 their expungement from S.T.’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, which was the first day of S.T.’s suspension, the principal notified petitioners of S.T.’s five-day suspension.[6] The principal states in an affidavit that she telephoned petitioners on the evening of March 18 to inform them of S.T.’s suspension, which was to begin the following day.  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 was unavailable until Monday, March 22, 2010, the second day of the suspension, because she had jury duty on Friday, March 19, 2010.  While the principal 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 must be expunged.

Respondent argues in its answer that S.T.’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, the suspension from March 19 through March 25, 2010 must be expunged from S.T.’s record.

Although the initial five-day suspension must be expunged, that does not entirely resolve the matter, because a long-term suspension was imposed following a superintendent’s hearing.  Petitioners allege that S.T. was improperly suspended for a sixth day before the hearing commenced.  However, where a hearing is timely scheduled, but adjourned at the parent’s request, the five-day requirement is vitiated and the student may remain out of school beyond five days (seeAppeal of L.F., 50 Ed Dept Rep, Decision No. 16,252; Appeal of F.W., 48 id. 399, Decision No. 15,897).  Here, the hearing was originally scheduled for March 24, 2010, the fourth day of the suspension, but petitioners requested an adjournment to obtain counsel, and the hearing was rescheduled for March 26, 2010.  Therefore, there is no merit to petitioners’ claim that S.T. was improperly suspended for a sixth day.

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, “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.”

Petitioners contend that the charges to which S.T. pled “no contest” are too vague.  While petitioners raised this claim of vagueness in their appeal to respondent, the record reveals that, although represented by counsel, petitioners failed to raise it before the hearing officer at the hearing and, in fact, had S.T. enter a plea without such objection.  Accordingly, respondent should not have considered it and it 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]).  Similarly, petitioners’ allegations regarding the hearing officer’s participation and impartiality may not be considered because they are not part of the record below.

Petitioners do not dispute the validity of S.T.’s “no contest” plea, but assert that the plea was essentially a waiver which must be nullified because they were not informed of their rights before entering the plea.  To the contrary, the hearing transcript reveals that the hearing officer specifically informed petitioners of their due process rights on the record immediately after the parties introduced themselves and before petitioners’ then-counsel entered the plea on S.T.’s behalf.  Accordingly, petitioners’ claim that they were not informed of their rights before entering a plea is without merit.

Moreover, I disagree with petitioners’ assertion that entering a plea at a hearing is the equivalent of a waiver of due process rights.  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, petitioners and S.T. 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.  Moreover, there was no quidproquo, or proposed agreement, regarding a penalty or reduction thereof.

Petitioners do not contest the validity or meaning of the “no contest” plea.  Moreover, nothing in the record indicates, nor do petitioners argue, that S.T.’s plea was not entered in a voluntary, knowing and intelligent manner.  Although a review of previous Commissioner’s decisions reveals few cases involving “no contest” pleas in student disciplinary proceedings, such 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).  Accordingly, I find no reason to annul the hearing officer’s determination in this case.

However, the superintendent did not render his determination until March 30, 2010.  While the delay in rendering the disposition would not be a basis for overturning the suspension, a continued exclusion from school for two school days after the hearing 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 29 and 30, 2010, must also be expunged from S.T.’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).

The record indicates that petitioners had an opportunity to meet with the principal and assistant principal and that S.T. pled “no contest” to the charges and admitted his participation.  Accordingly, to the extent the athletic suspensions are part of S.T.’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 S.T. from March 19 through March 25, 2010, and March 29 through March 30, 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.B., 52 id., Decision No. 16385; Appeal of S.Z. and K.Z., 52 id., Decision No. 16384).

[2] Although the assistant principal avers that he met with S.T.’s father on March 18, 2010, petitioners do not mention this in their papers.

[3] Petitioners and S.T. were represented at the hearing by a different attorney than the one representing them in this appeal before the Commissioner.

[4] 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.

[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] Although petitioners allege that the principal’s letter was improperly sent by regular mail, the record lacks evidence of delivery method.  While I need not address this issue because the five-day suspension is expunged on other grounds, I remind respondent of its obligation to comply with the statute and regulation in all respects.