Appeals of F.L. and D.L., on behalf of their son J.L., from action of the Board of Education of the City School District of the City of Ithaca regarding student discipline.

Decision No. 16,888

(March 21, 2016)

Edward E. Kopko, Esq., attorney for petitioners

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ELIA, Commissioner.--In two separate appeals, petitioners challenge the decision of the Board of Education of the Ithaca City School District (“respondent”) to suspend their son, J.L., from school for three days. Because the appeals raise common issues of law and fact, they are consolidated for decision. The appeals must be dismissed.

The record indicates that, on Friday, December 13, 2013, during half-time of a high school basketball game, the associate principal observed J.L., a high school student, standing with a group of students in the school parking lot, one of whom (not J.L.) appeared to be holding alcohol.  Consequently, the associate principal brought the group of students to the school office where J.L. admitted to consuming alcohol prior to coming to the basketball game.  J.L. also signed a statement admitting the conduct. 

J.L. was released to the custody of his father.  At that time, the associate principal informed J.L.’s father that she was going to recommend to the principal that J.L. be suspended.  She also verbally informed him that he had the right to an informal conference before a suspension was implemented. 

On Monday, December 16, 2013, J.L. was permitted to, and did, attend school.  The same day, the associate principal contacted petitioners and scheduled an informal conference for that afternoon.  Petitioners, J.L., the associate principal and the principal attended the informal conference.  During the conference, the principal signed a written suspension notice and handed a copy to petitioners.  The notice indicated that the principal was imposing a five-day suspension to begin on December 17, 2013 for: alcohol possession or use, failure to follow school rules and regulations, and creating dangerous conditions.  Specifically, the letter listed the offenses in the school code of conduct as:

2.4: Creating a hazardous or physically offensive condition by any act that serves no legitimate purpose; 2.6: Any wilful unsanctioned act that disrupts the normal operation of the school community; 3.2: Failure to comply with any school district rule, regulation or policy; 5.1: Selling, distributing, using, or possessing alcohol; 8.1: Any conduct violating Federal, state, or local law, rule or regulation, or District policy on maintenance and enforcement of public order on school property.

Following the informal conference, the high school principal sent petitioners a duplicate copy of the notice of suspension via express mail.  At some point following the informal conference, J.L.’s suspension was reduced to three days.    

By letter dated December 18, 2013, petitioners appealed the suspension to the superintendent, demanding that the suspension be expunged from J.L.’s record.  By letter dated January 16, 2014, the superintendent upheld the three-day suspension imposed by the principal and denied the request for expungement.

By letter dated January 17, 2014, the Chief of Secondary Schools Officer scheduled a superintendent’s hearing (“hearing”) to consider the imposition of further discipline against J.L. regarding the conduct listed above.  The hearing was held on January 24, 2014.  The hearing officer recommended that J.L. be found guilty of violating three of the five charges - sections 3.2, 5.1 and 8.1 of the school code of conduct; however, he recommended that there be no additional discipline imposed.  By letter dated January 29, 2014, the superintendent informed petitioners that he adopted the hearing officer’s recommendations. 

By letter dated January 28, 2014, petitioners appealed to respondents challenging the superintendent’s decision to uphold the three-day suspension and refusal to expunge the suspension from J.L.’s record.  By letter dated February 6, 2014, the school district clerk informed petitioners that their appeal of January 28, 2014, and to the extent they were appealing the superintendent’s January 29, 2014 decision, would be reviewed on February 25, 2014.  Petitioners were given five minutes to present their case.  By letter dated February 29, 2014, respondent upheld the three-day suspension.  These appeals ensued. 

With regard to the short-term suspension, petitioners contend that respondent failed to provide proper advance written notice of the suspension and therefore request that the suspension be expunged from J.L.’s record. 

Petitioners also make numerous allegations regarding various aspects of the hearing.  Petitioners contend that the hearing should not have been limited in scope to whether J.L. engaged in misconduct and should have addressed whether the district violated J.L.’s due process rights when imposing the short-term suspension.  They further contend that the district’s failure to respond to subpoenas violated J.L.’s due process rights.  Petitioners challenge the finding of guilt at the hearing, alleging that the finding was not supported by substantial evidence because the district failed to introduce the code of conduct as evidence.  Petitioners also challenge the finding of guilt on each of the three sustained charges on various grounds.

Respondent maintains that petitioners received proper notice, as the notice to suspend was provided to petitioners before the imposition of the suspension and therefore, the suspension should not be expunged.  Respondent further argues that even if the notice was procedurally defective, the suspension was upheld after the hearing and therefore, should not be expunged.  Respondent also argues that the district met its burden of establishing that J.L. violated the code of conduct, as J.L. admitted to consuming alcohol prior to coming to the school for a basketball game.  Finally, respondent argues that at no point during the disciplinary process were petitioners denied the opportunity to develop a record or question complaining witnesses who had knowledge of the alleged misconduct.   

First, I will address petitioners’ allegation that they were not given adequate written notice of the short-term suspension.  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]).

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 (see e.g. Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).

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).

The parties do not dispute that during the meeting held on December 16, 2013, the principal handed petitioners notice of the proposed short-term suspension.  Petitioners’ argument that the duplicate copy of the notice sent via express mail was not received until December 17, 2013 is without merit, as they were provided the notice by personal delivery, a delivery method specifically included in 8 NYCRR §100.2(l)(4). Nothing prohibits a district from personally delivering notice of a suspension during an informal conference where both the complaining witness(es) and the principal are present and the suspension has not yet started (see e.g. Appeal of a Student With a Disability, 40 Ed Dept Rep 47, Decision No. 14,418).

Petitioners argue that the written notice must be provided before the informal conference.  However, 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 parties do not dispute that J.L. was entitled to and in fact did attend school on December 16, 2013, the day the meeting was held, or that after the principal gave petitioners the notice, the meeting continued.  Petitioners had the opportunity to question the complaining witness, the associate principal, in the presence of the principal before the suspension was implemented.  Therefore, in this instance, there is no basis upon which to expunge J.L.’s suspension (cf. Appeal of a Student With a Disability, 40 Ed Dept Rep 47, Decision No. 14,418; Appeal of J.G., 39 id. 393, Decision No. 14,270).   

Petitioners’ other claims involve the scope, conduct and outcome of the hearing. Petitioners’ contention that the hearing was improperly limited to whether J.L. committed the alleged misconduct is without merit.  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).  As described in the January 17, 2014 hearing notice, the purpose of the hearing was to consider whether J.L. engaged in the alleged misconduct, and if so, what additional penalty should be imposed.  Petitioners’ argument that the hearing was improperly limited in scope, and should have also determined whether the district violated J.L.’s due process rights with respect to the short-term suspension, is misplaced. 

Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578; Appeal of M.A., 45 id. 206, Decision No. 15,303).  A superintendent’s hearing is not the proper venue for an appeal regarding a short-term suspension.  Therefore, petitioners' allegations that J.L.’s due process rights were violated when the district failed to respond to subpoenas are without merit.  The subpoenas at issue sought information regarding the sequence of events preceding the issuance of the written notice of the short-term suspension and informal conference, and were, therefore, irrelevant to the scope of the hearing.

Moreover, the record indicates that petitioners appealed the short-term suspension to both the superintendent and respondent.  First, by letter dated December 18, petitioners requested expungement of the short-term suspension and a hearing regarding the “due process procedures of the informal conference.”  By letter dated January 16, the superintendent informed petitioners that their request was denied and that a separate notice would be sent regarding a superintendent’s hearing that would be convened for the purpose of determining whether further discipline should be imposed.  Thereafter, by letter dated January 28, petitioners appealed the superintendent’s January 16 decision to respondent.  By letter dated February 6, the district clerk informed petitioners that respondent would hear both petitioners’ appeal of the superintendent’s January 16 decision and any appeal from the outcome of the superintendent’s hearing at its February 25 meeting.  Respondent denied petitioners’ appeals by letter dated February 29.  On this record, respondent afforded all required due process to petitioners.

To the extent petitioners challenge the determination of guilt at the hearing, it is well-settled that, 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 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).  Moreover, 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).

While petitioners appeal the finding of guilt, they do not deny that J.L. drank alcohol before coming to a school basketball game.  Indeed, in addition to J.L.’s written statement admitting to the conduct, the record also indicates that J.L. admitted to the conduct after being questioned by the associate principal, at the informal conference and again at the hearing.  The hearing officer heard petitioners’ arguments and J.L.’s statements at the hearing and determined that J.L. consumed alcohol before coming to school in violation of section 5.1 of respondent’s code of conduct, which prohibits “[s]elling, distributing, using or possessing alcohol.”  Having so found, the hearing officer also concluded that J.L.  violated sections 3.2 (failure to comply with any school or district rule, regulation or policy) and 8.1 (any conduct violating federal, state, or local law, rule, regulation, or district policy including but not limited to the district’s policy on maintenance and enforcement of public order on school property).  As noted above, 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).  Petitioners offer no persuasive facts on which to substitute my judgment for that of respondent on the issue of credibility.

Petitioners also claim that, because the infraction was J.L.’s first offense and because his misconduct was minor, no penalty should have been imposed and the principal improperly refused to exercise his discretion in imposing a short-term suspension in this instance.  The record indicates that both the superintendent and respondent board reviewed and agreed with the suspension imposed.  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).  Based on the record, I cannot conclude that a three-day suspension for use of alcohol prior to attendance at a school function is so excessive as to warrant the substitution of my judgment for that of respondent board (see e.g., Appeal of K.M., 50 Ed Dept Rep, Decision No. 16,178; Appeal of D.G., 43 id. 299 Decision No. 15,001; Appeal of Lee D., 38 id. 262, Decision No. 14,029; Appeal of Robert D., 38 id. 18, Decision No. 13,975). Moreover, the principal did exercise discretion when he reduced J.L.’s suspension from five days to three days.

Finally, I find no merit to petitioners’ claim that J.L. was denied due process because the district failed to introduce the code of conduct into the record at the 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).  In this case, the hearing notice quoted the specific sections of the code of conduct which J.L. was charged with violating.  Moreover, these sections of the code of conduct were recited at the hearing, at which J.L. was represented by counsel, after which the hearing officer concluded that the conduct to which J.L. admitted violated sections 5.1, 3.2 and 8.1 of the code of conduct.  On this record, I find that petitioners have failed to carry their burden on this claim.

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEALS ARE DISMISSED.

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