Appeal of E.B. and F.B., on behalf of their daughter C.B., from action of the Board of Education of the Clarence Central School District, Superintendent Thomas Coseo, and Principal Kenneth J.Smith, regarding student discipline.

Decision No. 16,545

(August 30, 2013)

The Garas Law Firm, LLP, attorneys for petitioners, John C.Garas, Esq., of counsel

Hodgson Russ LLP, attorneys for respondents, Ryan L. Everhart, Esq., of counsel

KING, JR., Commissioner.--Petitioners challenge the suspensions of their daughter, C.B., by the Board of Education of the Clarence Central School District (“respondent board”), its superintendent and high school principal (collectively, “respondents”). The appeal must be sustained in part.

During the 2010-2011 school year, C.B. was a sophomore at respondent board’s high school. On April 8, 2011, she attended a dance at the high school. Teachers at the dance smelled alcohol on the breath of another student who attended the dance with C.B. and advised the assistant principal. The assistant principal questioned the other student and administered a Breathalyzer test to her. The other student tested positive for alcohol consumption and admitted that she consumed alcohol with C.B. prior to the dance. The assistant principal then questioned and administered a Breathalyzer test to C.B., the results of which indicated a blood alcohol content of .014.

Petitioners were contacted and asked to pick up C.B. from the dance. When petitioners arrived at the dance, they were advised that C.B. would be suspended from school for a period of five days commencing Monday, April 11,2011. Respondents allege that petitioners were also advised that a superintendent’s hearing would be scheduled to consider imposition of a long-term suspension.

On the morning of April 11, 2011, E.B. arrived at the high school to pick up C.B.’s homework. Respondents allege that a five-day suspension letter was handed to E.B. when he arrived at the school that morning. Petitioners allege that when E.B. arrived at the school, he was told that a

letter “was in typing,” but he was not provided with one. Petitioners further allege that late in the afternoon on April 11, 2011, they received by personal delivery a letter from the principal notifying them that he had formally suspended C.B. for a period of five days from Monday, April 11, 2011 through Friday April 15, 2011 for engaging in conduct endangering the safety, health and welfare of others and for attending a dance while under the influence of alcohol.

On the same day, the superintendent provided notice to petitioners that a hearing was scheduled for April 14, 2011 to consider imposing a long-term suspension.

The hearing was held on April 14, 2011. At the hearing, C.B. admitted that she went to a school dance while under the influence of alcohol. The hearing officer recommended that C.B. serve an additional ten weeks of suspension. She further recommended that if C.B. submitted proof from a counselor that she was actively participating in counseling, the last five weeks of the suspension would be held in abeyance.

By letter dated April 15, 2011, the superintendent advised petitioners that he accepted the hearing officer’s recommendation. The letter also included information regarding how to appeal his decision. By letter dated April 18, 2011, petitioners appealed the superintendent’s decision to respondent board.

On May 9, 2011, respondent board considered petitioners’ appeal of the long-term suspension and their request that the board annul and expunge the short-term suspension from C.B.’s record. Petitioners allege that at the hearing they argued that they were notified in writing of the short-term suspension subsequent to its commencement. With respect to the long-term suspension, they allege that they argued that there was no evidence in the record sufficient to sustain the charge that C.B. was “under the influence of alcohol” or that she endangered the safety, morals, health or welfare of others. They argued that both the short-term and long-term suspensions should be annulled and expunged from C.B.’s record.

By letter dated May 10, 2011, respondent board’s clerk advised petitioners that the board agreed to modify the superintendent’s decision to allow C.B. to return to school on Monday, May 20, 2011, assuming that she met the conditions stated in the original decision, and that the “record of the incident ... [would] be sealed in the Superintendent’s Office” assuming C.B. maintained good behavior through the completion of the 2010-2011 school 2

year. The letter also advised petitioners that the board’s decision could be appealed. This appeal ensued.

Petitioners contend that the five-day suspension was unlawful because the notice was not timely and there was no evidence that the student’s presence in school constituted a continuing danger to persons or property or an ongoing threat of disruption to the academic process. They also contend that the long-term suspension was arbitrary and capricious because there was no evidence that C.B. was under the influence of alcohol on the night of the dance. They seek annulment and expungement of both suspensions.

Respondents contend that they followed proper procedures in imposing C.B.’s discipline, that the penalty was proportionate to C.B.’s actions and that some or all of petitioners’ claims are barred by the applicable statute of limitations.

I will first address the procedural issues. Respondents make a vague and general allegation that some or all of petitioners’ claims are barred by the applicable statute of limitations. 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). 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 Rep497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). Respondent board’s decision is dated May 10, 2011. Petitioners allege that they received the decision on May 13, 2011. Petitioners had to commence their appeal on or before June 12, 2011, which was a Sunday. Where, as here, the 30-day time period in which to commence an appeal ends on a Saturday, Sunday or a public holiday, a petition may be served on the next succeeding business day (8 NYCRR §275.8[a]). Petitioners, therefore, had until June 13, 2011 to serve their petition. Petitioners’ affidavit of service states that respondents were served on June 13, 2011. Respondents have produced no evidence to the contrary. Therefore, I will not dismiss the appeal as untimely.

However, 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 3

of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro,48 id. 204, Decision No. 15,836). Because C.B.’s suspensions from school have been served, the appeal is therefore moot, except to the extent petitioners seek expungement of C.B.’s record (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of L.O. and D.O., 47id. 194, Decision No. 15,666).

Turning 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, however, 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 April 11, 2011, the first day of C.B.’s suspension, the principal provided notice of C.B.’s five-day suspension, the reasons therefor and the right to an informal conference. Respondents admit that the letter was not delivered to petitioners prior to the start of the suspension. Respondents also admit that the five-day suspension letter did not assert that C.B.’s presence in school posed a continuing danger to students or an ongoing threat of disruption to the academic process. However, they claim that there was no harm to petitioners as a result of the timing of the April 11, 2011 delivery, as petitioners knew of the suspension and had a full and fair opportunity to discuss it with the principal on the night of the dance or anytime thereafter. In addition, respondents claim in their memorandum of law that C.B. needed to be suspended immediately because her continued presence at school would have caused a disruption to the academic process. Respondents’ claims are unavailing. The principal’s letter did not state that C.B. posed a continuing danger to persons or property or an ongoing disruption to the academic process, and therefore, petitioners should have been provided timely written notice and an opportunity for an informal conference with the principal prior to the suspension (see Appeal of L.L., 51Ed Dept Rep, Decision No. 16,334, Appeal of L.P., 50 id., Decision No. 16,252; Appeal of J.V.O., Jr., 50 id., Decision No. 16,234.) Accordingly, the short-term suspension must be expunged.

With respect to the long-term suspension, I find no basis to disturb respondent board’s determination of guilt. 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 Rep441, Decision No. 15,909; Appeal of V.D., 48 id. 89,Decision No. 15,800).

Petitioners assert that there is no evidence that C.B. was under the influence of alcohol on the night of the dance or that she endangered the safety, morals, health or welfare of any other person. They argue that respondent board’s Code of Conduct (“Code”) only governs student behavior on school property or at a school function and 5

that C.B. did not possess or consume any alcohol at the dance. Petitioners also argue that the term “under the influence” is not defined in the Code, and that it should therefore be given its commonly understood meaning, which, according to petitioners, is “when its consumption produces a discernable effect on [an individual’s] demeanor or behavior,” such as slurred speech, physical awkwardness, or erratic or inappropriate behavior.

Education Law §2801 requires respondent board to adopt a code of conduct for the maintenance of order on school property or at school functions. Respondent board’s Code clearly states that students may be subject to disciplinary action when they engage in any conduct that endangers the safety, morals, health or welfare of others, including but not limited to possessing, consuming, selling, distributing or exchanging alcoholic beverages or illegal substances, or being under the influence of either. I have found similar provisions to be clear and reasonable (see Appeal of D.G.,43 Ed Dept Rep 299, Decision No. 15,001).

Petitioners urge that the blood alcohol levels set forth in Vehicle and Traffic Law provide relevant “context” for their assertion that C.B., with a blood alcohol level of .014, was not under the influence of alcohol. Petitioners’ argument is unavailing. Contrary to petitioners’ claims, in addition to prohibiting the consumption of alcohol, the Code prohibits the conduct of a student being under the influence of alcohol and does not establish a minimum level of blood alcohol content to establish a violation. Unlike the Code, which sets forth rules for student conduct in order to maintain order on school property and at school functions, the Vehicle and Traffic Law sets forth the standards by which those who consume alcohol may operate a motor vehicle. The record in this case reflects that another student indicated that she consumed alcohol with C.B. prior to attending the dance, that C.B. admitted that she consumed alcohol prior to attending the dance, and that C.B. tested positive for alcohol at the dance. I find this evidence to be sufficient to support respondent board’s findings that C.B. violated the Code (see Appeal of James L., 39 Ed Dept Rep482, Decision No. 14,288).

Petitioners also claim that C.B.’s “admission” at the hearing was refuted by her later testimony the she felt “perfectly fine.” With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the 6

determination of credibility is inconsistent with the facts(Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929;Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391,Decision No. 15,895). Here, the hearing officer accepted C.B.’s admission and indicated that she appreciated C.B.’s honesty. The hearing officer also gave C.B. the opportunity to explain what happened on the night of the dance. The hearing officer asked C.B. questions and C.B. responded. The hearing officer is in the best position to determine matters concerning witness conduct and credibility. Her findings are supported by the record and there is no basis to overrule her acceptance of C.B.’s admission of guilt.

Petitioners’ contention that there is no evidence that

C.B. endangered the safety, morals, health or welfare of other students is also unavailing. The Commissioner has upheld suspensions pursuant to Education Law §3214 when students were shown to be under the influence of alcohol or to have possessed it without consuming it (see e.g., Appeal of James L., 39 Ed Dept Rep 482, Decision No. 14,288;Appeal of Cynthia and Robert W., 37 id. 437, Decision No.13,899). Indeed, in Appeal of Cynthia and Robert W., which involved the possession, but not the consumption, of alcohol on school grounds, the serious nature of alcohol consumption among students was noted because “the mere availability [of alcohol on school grounds] increased the risk that consumption could occur” (Appeal of Cynthia and Robert W., 37 Ed Dept Rep 437, Decision No. 13,899).

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., 48id. 348, Decision No. 15,882). Based on the record in this case, petitioners have failed to establish a basis upon which to expunge C.B.’s long-term suspension.

In light of the foregoing, I need not address petitioners’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that any reference to the April 11, 2011through April 15, 2011 suspension be expunged from C.B.’s records.

END OF FILE