Decision No. 17,001
Appeal of N.C., on behalf of his daughter C.C., from action of the Board of Education of the Valley Stream Central High School District regarding student discipline.
Decision No. 17,001
(November 16, 2016)
John J. McGrath, Esq., attorney for petitioner
Guercio and Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Central High School District (“respondent”) to suspend his daughter, C.C., from school and requests that her record be expunged. The appeal must be dismissed.
During the 2013-2014 school year, C.C. was a student in respondent’s North High School. According to both parties, on March 6, 2014, while on a district field trip, another student handed C.C. a water bottle from which she took a sip. Respondent submitted an affidavit from a guidance counselor who chaperoned the field trip stating that after C.C. took a sip from the water bottle, she made “a face of knowing disgust” but “did not appear to have been surprised by the fact that the liquid she ingested was not water.” Thereafter, another chaperone confiscated the water bottle and it was confirmed that the water bottle contained alcohol. However, petitioner contends that his daughter was not aware that the water bottle contained alcohol.
Chaperones immediately notified the assistant principal of the high school (“assistant principal”) of the incident and he called the parents of the students involved, including C.C.’s mother. The following day, the assistant principal spoke with the chaperones and the students involved in the incident. Although C.C. stated that she asked her classmate for a drink assuming it was water, given the description of the incident by the chaperones, the assistant principal did not find C.C.’s explanation credible. Therefore, he referred the matter to the high school principal (“principal”) and recommended that C.C. be subject to discipline for her involvement in the incident.
On March 12, 2014, the principal and assistant principal met with C.C. and her mother to discuss the incident. Following the meeting, the principal sent a notice of proposed suspension to petitioner. The notice stated that C.C. was charged with “insubordination, disorderly conduct and endangering the health and welfare of self and/or others.” Specifically, the notice stated that “on March 6 while attending a school sponsored field trip [C.C.] possessed and/or consumed alcohol.” The proposed penalty included a five-day suspension to be served from March 24 until March 28, 2014. Additionally, the penalty included exclusion from all remaining field trips for the 2013-2014 school year and the Junior Dinner Dance. The notice also informed petitioner of C.C.’s due process rights, including the right to question complaining witnesses at an informal conference.
On March 18, 2014, petitioner attended an informal conference with the principal. After the meeting, the principal upheld the proposed suspension and that same day, petitioner appealed to the superintendent. The principal held C.C.’s suspension in abeyance during the pendency of the appeal. By letter dated March 24, 2014, the superintendent upheld the suspension to begin that Friday, March 28, 2014 and petitioner appealed to respondent. By letter dated April 2, 2014, respondent upheld the suspension. This appeal ensued. Petitioner’s request for interim relief was denied on May 13, 2014.
Petitioner argues that the five-day suspension letter is procedurally defective, in that it does not adequately give notice of the charges because there is no citation to the student code of conduct or other school rules. Petitioner also argues that the decision to suspend, and the subsequent decisions upholding the suspension, were arbitrary and capricious and contends that there is no evidence that C.C. was insubordinate, disorderly, or that she endangered the safety of others. Petitioner alleges that written statements of two other students verified that C.C. did not know there was alcohol in the water bottle, and that C.C.’s own safety was endangered by the student who handed her the water bottle and the chaperones who were negligent “in failing to search students for this type of contraband.”
Finally, petitioner alleges that the statement in the March 12, 2014 suspension letter that C.C. was barred from future field trips and the Junior Dinner Dance is not a proposed penalty, but indicates “that the decision to bar her from those events had already been made.” Petitioner also argues that the “swift consideration gives one pause as to whether it was petitioner’s daughter’s race that produced such result.”
Respondent contends that petitioner has failed to state a claim upon which relief may be granted and has not met his burden of proof. Respondent also contends that the relief requested as to allowing student to attend the Junior Dinner Dance, field trips, and rescinding the suspension are moot and therefore, should be dismissed.
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 the suspensions from C.C.’s record.
Petitioner’s claim that the notice of suspension was inadequate is without merit. 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[b], 8 NYCRR §100.2[l]; 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[b], 8 NYCRR §100.2[l]).
Contrary to petitioner’s argument, there is no requirement that a disciplinary notice cite a specific provision of respondent’s code, even in the case of a long-term suspension of more than five days (Appeal of S.Z. and K.Z., 52 Ed Dept Rep, Decision No. 16,384; Appeal of L.L., 45 id. 217, Decision No. 15,306). The notice of charges need only be sufficiently specific to provide the student with enough information to prepare an effective defense (Bd. Of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of L.L., 45 Ed Dept Rep 217, Decision No. 15,306).
In the case of a short-term suspension of five days or less, the notice must describe the incident or incidents for which suspension is imposed (8 NYCRR §100.2[l]), so that the student may present his or her version of events and exercise the right to question complaining witnesses at an informal conference (Education Law §3214[b]; 8 NYCRR 100.2[l]; Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849). The March 12, 2014 letter charged C.C. with “insubordination, disorderly conduct and endangering the health and welfare of self and /or others” based on her involvement in the March 6 incident. I find that this letter afforded petitioner with adequate notice of the incident and the nature of the charges.
Petitioner also contends that there is no evidence that C.C. engaged in the alleged misconduct and alleges that the decision to suspend C.C. was arbitrary and capricious. In this case, a chaperone watched C.C. drink from the water bottle, and in her affidavit, stated that C.C. did not look surprised that the bottle did not contain water. The assistant principal conducted an investigation which included questioning C.C. The assistant principal stated that he did not find her denial credible. Although petitioner asserts that written statements of two other students verified that C.C. did not know that there was alcohol in the water bottle, petitioner did not submit these statements. Since the statements are not part of the record before me, I cannot consider them. The dispute in this appeal comes down to the credibility of the school administrators and the student, and I will not substitute my judgment for that of local school officials on an issue of credibility (Appeals of C.C. and R.C., 47 Ed Dept Rep 289, Decision No. 15,700; Appeal of Lee D., 38 id. 262, Decision No. 14,029).
Additionally, petitioner alleges that the decision to suspend C.C. was predetermined and/or based on her race. While these are serious allegations if proven, petitioner submits no evidence to support these allegations. The record indicates that the principal held the proposed penalty in abeyance twice; first to give petitioner additional time to attend a meeting, and again when petitioner indicated that he was appealing the suspension to the superintendent. Additionally, after the penalty was implemented, C.C. was allowed to attend a field trip that was part of the academic curriculum. There is nothing in the record before me to suggest that the decisions to suspend or uphold the suspensions were in any way based on C.C.’s race.
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). Petitioner has failed to meet his burden of proving that respondent’s actions in imposing the suspensions were arbitrary and capricious. In addition to the information stated above, the mere fact that respondent decided petitioner’s appeal on the same day that it received the appeal is insufficient to show that the decision was predetermined and/or arbitrary and capricious.
THE APPEAL IS DISMISSED.
END OF FILE
 According to respondent, this part of the proposed penalty was inadvertently included under “Incident Description” but should have been “placed at the end of the first full paragraph of the letter, after the proposed period of suspension.”
 C.C.’s actual suspension was served from April 2, 2014 through April 8, 2014 due to misunderstanding of the suspension start date.