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Decision No. 17,244

Appeal of D.B., on behalf of his son D.B., from action of the Board of Education of the Hamburg Central School District regarding student discipline. 

Decision No. 17,244

(November 2, 2017)

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

Petitioner appeals the decision of the Board of Education of the Hamburg Central School District (“board” or “respondent”), to suspend his son, D.B.  The appeal must be dismissed.

During the 2014-2015 school year, D.B. was enrolled in the eighth grade in respondent’s schools.  The record indicates that D.B. received a five-day in-school suspension beginning on November 13, 2014, to be served November 13-19, 2014.  Respondent provided written notice to petitioner dated November 12, 2014, detailing the conduct for which this suspension was imposed including disorderly conduct, insubordination and excessive truancy, stating that the student was “disrespectful (verbally and in email) to teachers and staff members when addressed” and “refused to comply with request(s) from [a] staff member” on November 12, 2014, and that the student was not in school on November 5, 6, 7, and 10, 2014 without any information provided by the parent for an excused absence.  The notice described the conduct as “[e]ndangerment or harassment of another; disrupting the orderly conduct of school activities,” “[f]ailure/refusal to comply with the reasonable request” of school personnel and “[u]nexcused, illegal absences from school.”

On December 19, 2014, D.B. received a one-day in-school suspension and two days of out-of-school suspension.[1] Respondent provided notice to petitioner dated December 19, 2014, stating that the in-school suspension would be served that day at the middle school and that the out-of-school suspension would be served at the Ormsby Center.[2]  The notice also detailed the conduct, occurring on December 17 and 19, 2014, for which the suspensions were imposed, including repeated instances of disorderly conduct and insubordination, stating that the student’s behavior was “both rude and disrespectful” and that he “[r]efuses to follow directions in the cafeteria.”  Additionally, D.B. “slapped himself in the face [and] then applauded to it when addressed by a staff member” and “refused to enter [the] [a]ssistant [p]rincipal’s [o]ffice and refused to speak with [him].” The student was also “defiant in [the in-school suspension] room to the teacher” and “refused to comply with teacher requests.”  The notice described the conduct as “[f]ailure/refusal to comply with the reasonable request” of school personnel and “[d]isrupting the orderly conduct of classes, school program(s), and/or school activities.”     

On December 23, 2014, D.B. received another one-day in-school suspension and four days of out-of-school suspension.  Respondent provided notice to petitioner dated December 23, 2014, stating that the in-school suspension would be served that day at the middle school and that the out-of-school suspension would be served January 7-12, 2015 at the Ormsby Center.[3]  The notice also detailed the conduct, occurring on December 23, 2014, for which the suspensions were imposed, including repeated instances of insubordination/acts of defiance, disorderly conduct, truancy, and willful disruption of normal school operations.  The notice stated that the “[s]tudent came to school and walked into first period class instead of attending the Ormsby Center for an assigned suspension.”  The notice also stated that “[w]hile suspended out of school, students are not allowed on school grounds” and that the “[s]tudent was notified and aware of this.”  Further, the notice stated that the student’s absence from the Ormsby Center was unexcused on December 23, 2014.  The notice described the conduct as “[f]ailure/refusal to comply with the reasonable request” of school personnel, noting that “[t]his has become a repetitive action,” as well as “[d]isrupting the orderly conduct of classes, school program(s), and/or school activities, [u]nexcused absence (skipping school),” and “[w]illful disruption of normal school operations (trespassing).”      

By letter dated January 8, 2015, respondent’s Interim Superintendent of Schools (“superintendent”) initially scheduled a superintendent’s hearing on the December 23, 2014 charges against D.B. to take place on January 12, 2015.[4]  At the January 12, 2015 superintendent’s hearing, respondent states that it had believed that there was a resolution of the charges set forth in the January 8, 2015 letter, whereby the parties agreed that: D.B. would be suspended out of school for the remainder of the 2014-2015 school year; he would receive home instruction for that period; and petitioner and D.B. would waive all rights to a hearing under Education Law §3214 in addition to any and all rights to appeal to the board, the Commissioner or any other body authorized to consider an appeal.  However, by letter dated January 23, 2015, petitioner challenged the terms of the resolution of charges as set forth in a January 14, 2015 superintendent’s letter.

As a result, a second hearing was held on February 10, 2015 on three of the four charges set forth in the January 8, 2015 letter (the truancy charge was not included) as noticed in a February 5, 2015 letter to petitioner.  Petitioner and D.B. were not present at this hearing.  The record indicates that it was the district’s position, at that time, that petitioner had no intention of cooperating with the district’s attempts to timely resolve the matter.[5]  By letter dated February 12, 2015, the superintendent issued a decision finding D.B. guilty of the charges against him, noting that, while the hearing officer recommended that D.B. be “suspended out of school through March 6, 2015 with a return date of March 9, 2015,” “short term suspensions do not seem to deter misconduct” in D.B.’s case and thus the superintendent recommended that D.B. be suspended for “an additional [] 12 school days” to be served prior to D.B.’s re-enrollment (if any) in respondent’s schools.[6]  By letter dated March 1, 2015, petitioner appealed this determination to the board.  By letter dated April 23, 2015, petitioner was notified that the board had met and denied his appeal on April 21, 2015.  This appeal ensued.

Although not entirely clear, petitioner appears to challenge all suspensions imposed on the three dates above - November 12, 2014, December 19, 2014, and December 23, 2014 - including the in-school and out-of-school (both short-term and long-term) suspensions.  Petitioner asserts that, among other things, the notices of suspension are insufficiently specific for D.B. and his advocate or counsel to prepare a defense; that no complaining witness, or people reporting the charges are identified, denying D.B.’s right to question and cross-examine such individuals; that the December 19 and 23, 2014 notices were not signed by the principal, creating doubt that they were prepared and sent by the principal; that the November 12, 2014 and December 19 and 23, 2014 notices provided no statement or right to request a conference with the principal, although informal conferences were repeatedly requested by email; that D.B. received no notice of the December 19, 2014 suspension and timely receipt would have avoided the need for the December 23, 2014 suspension notice; that all informal conference requests (in excess of ten) were denied and not granted prior to the three suspensions; and that “the simple descriptions and details of all charges are conclusory statements not sufficiently specific for a[n Education Law §3214] hearing.”  Petitioner also contends that the discipline was not progressive and that that respondent “provided [no] required equivalent and accountable learning opportunity” during the suspensions.  Additionally, the petition includes a number of other allegations regarding “fraudulent gradebook records,” “academic dishonesty,” homework procedures, and D.B.’s academic progress, among other things.     

Petitioner requests that the “3 suspensions” be expunged from D.B.’s record.  Petitioner also requests an investigation into the district’s practices identified in the petition.  In addition, petitioner also requests “[d]esignation of competent personnel to [] meet with [D.B.] and [] [p]etitioner [to] determine, implement and monitor an accountable plan for [D.B.] to complete the grade 8 equivalent education denied by [r]espondent since November 13, 2014 ... [or] ... funding of the alternate....”  Petitioner requests that respondent provide him with all of D.B.’s report cards, progress reports, gradebooks, and assessments from September 2007 to May 20, 2015.  Petitioner also requests the “[i]dentification, disclosure and discipline” of respondent’s employees or consultants who made a “wholly false and mischievous report to the NYS Child Protection Services.”  Finally, petitioner requests an opportunity to appear before me to present oral argument of respondent’s repeated “corruption and its impact.”             

Respondent contends that petitioner failed to file a timely appeal, and, with the exception of the appeal of respondent’s April 21, 2015 decision, petitioner’s claims relating to the short-term suspensions in November and December 2014, are untimely.  Respondent also contends that the petition is moot as D.B. is no longer enrolled in the district, except to the extent petitioner seeks expungement of D.B.’s records.  Respondent further argues that petitioner failed to show that the district acted arbitrarily, capriciously, or contrary to law in determining that D.B. was guilty of the charges against him and suspending him for an additional 12 days.  Respondent states that the district acted in good faith and pursuant to its powers and duties at all times relevant to the petition.  Respondent also states that petitioner failed to state a claim for which relief may be granted, specifically that petitioner provides no basis for his claims unrelated to D.B.’s suspensions.  Respondent argues that the district took appropriate action pursuant to Education Law §3214 and the superintendent found D.B. guilty of the charges based upon the findings of fact and recommendations of the hearing officer, which were based on substantial and competent evidence.  Respondent also states that petitioner received proper notification, that both the short-term and long-term suspensions were appropriate, and that the record of the disciplinary hearing is complete and not defective.  Respondent further states that petitioner failed to meet the required burden of demonstrating a clear right to the relief requested and establishing the facts upon which petitioner seeks relief.  Finally, respondent asks (in its memorandum of law) that I not consider new allegations contained in petitioner’s reply, including but not limited to allegations that the district and its attorney engaged in criminal conduct.  Respondent requests the petition be dismissed in its entirety.

Petitioner, referring to the written notices of his son’s December 19 and December 23, 2014 suspensions, states in his reply that as “[a]pplicable written notice was received by ordinary mail [on] December 24 and 27, [2014],”[7] D.B. was not aware “when he came to school December 23, 2014 and walked into his first class that he had an assigned suspension.”

In his reply, petitioner also makes a contradictory allegation that the December 19, 2014 notice which included notice of the “two-day out-of-school suspension which was to take place on December 22nd and December 23rd ... was never received by [D.B.] and first received by petitioner approximately July 20, 2015.”  Petitioner also includes an envelope postmarked December 23, 2014[8] in his reply which he states contained the December 19, 2014 notice of suspension as well as a Discipline Notice relating thereto and was received by ordinary mail on December 27, 2014[9] (again contradicting his earlier assertion that he never received the December 19, 2014 notice until July 20, 2015).  Petitioner’s reply also states that when petitioner picked up D.B. at school on December 23, 2014, “[D.B.] reported receiving [the December 23, 2014 notice] which he gave to [] [p]etitioner” and which petitioner states was also received “by ordinary mail” on December 24, 2014.[10] 

Petitioner appears to contend, in essence, that the lack of proper notice to petitioner and D.B. as to the December 19, 2014 suspension resulted in the conduct that precipitated the December 23, 2014 suspension notice.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). 

In his reply, petitioner for the first time makes a series of allegations concerning the dates on which he received the written notices of his son’s out-of-school suspensions and alleges that neither he nor his son were aware that he had an assigned suspension when he walked into his first class on December 23, 2014.  The petition challenges the legal sufficiency of the written notices, but includes no allegations about the date he received the written notices and no allegations that his son was unaware of the December 19, 2014 suspension and the direction that he report to the Ormsby Center when he came to school on December 23, 2014.  Petitioner should have included such allegations and any related exhibits in his petition and may not raise them for the first time in his reply.  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

Next, I note that a petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  The petition in this matter includes 72 paragraphs, many of which solely identify petitioner’s exhibits comprising a collection of emails, letters, and questions posed to district personnel and others.  Petitioner makes a number of claims and requests, including a request for an investigation.  I find it difficult to determine the exact nature of many of petitioner’s claims or upon what basis he is entitled to the relief he seeks, given the incomplete and, at times, conflicting supporting information regarding facts and circumstances submitted by petitioner.  However, although the petition is not a model of clarity, I find that petitioner, who is not represented by counsel, has minimally set forth his claims and demands for relief in the petition with respect to his son’s suspensions in a manner sufficient to apprise respondent of the nature of his claims and the relief requested and I decline to dismiss the appeal for failure to make a clear and concise statement of his claims.

Respondent further argues, inter alia, that the appeal must be dismissed as moot, except to the extent petitioner seeks expungement of his son’s records, because the student has disenrolled from the district.  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).

In its answer, respondent asserts that in or around January 2015, petitioner enrolled his son in a school in Canada, and petitioner did not dispute this allegation in his reply.  The 2014-2015 and 2015-2016 school years have ended.  Accordingly, petitioner’s claims relating to the implementation of “an accountable plan” for his son “to complete the grade 8 equivalent education denied by [r]espondent since November 13, 2014 so he might enter grade 9 in September 2015” must be dismissed as moot. Similarly, to the extent petitioner is claiming that respondent failed to provide alternative instruction to his son during his suspensions, since the suspensions have already been served, such claim must also be dismissed as moot (see Appeal of a Student Suspected of Having a Disability, 55 Ed Dept Rep, Decision No. 16,912; Appeal of T.W., 54 id., Decision No. 16,728; Appeal of C.M., 50 id., Decision No. 16,142).

With respect to the student’s suspensions themselves, however, the only relief requested by petitioner is expungement of the suspensions from his son’s record.

It is well-settled that an appeal will not be dismissed as moot to the extent the petitioner seeks expungement of a disciplinary action from a student’s record (Appeal of D.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026).  This is the case even when the student is no longer enrolled (see e.g. Appeal of A.V. and S.A.-V., 53 Ed Dept Rep, Decision No. 16,528 [appeal not dismissed as moot to extent petitioners sought expungement where student was removed from respondent’s district and enrolled in a non-public school outside the district]; Appeal of a Student with a Disability, 49 Ed Dept Rep, 204, Decision No. 16,002 [appeal not dismissed as moot to extent petitioners sought expungement where student since received his GED]; cf. Appeal of a Student with a Disability, 44 Ed Dept Rep 301, Decision No. 15,180; Appeal of N.C., 40 id. 445, Decision No. 14,522 [appeals dismissed as moot where students graduated and records of suspension were expunged]).  Therefore, in any event, the appeal will not be dismissed as moot to the extent expungement is sought.

Additionally, I note that 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).  Here, as included in the record by petitioner’s reply, the Hamburg Central School District’s code of conduct provides for an appeal to the Board of Education within 10 business days from a suspension of five days or less.  It further states that, “[o]nly final decisions of the Board may be appealed to the Commissioner within 30 days of the decision.”  The letter from petitioner dated March 1, 2015 in which he requests an appeal, clearly indicates that he is appealing from the decisions of the superintendent and the hearing officer on the long-term suspension.  No mention is made of the short-term suspensions and there is no indication in the record that an appeal was taken from the short-term suspensions.  Therefore, it appears that petitioner failed to exhaust his administrative remedies by not appealing the short-term suspensions to the board.  However, as the December 2014 suspension notices contain no notice of such a restrictive requirement, I decline to dismiss this portion of the appeal for failure to exhaust administrative remedies (see Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

Also, respondent contends that most of petitioner’s claims must be dismissed as untimely.[11]  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 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). 

This appeal was commenced by service of the petition on May 21, 2015.  Allowing the usual five days for mailing, the appeal was commenced within 30 days of petitioner’s receipt of the April 23, 2015 letter informing petitioner of respondent’s denial of his appeal.  Therefore, the appeal is timely as to petitioner’s challenge to respondent’s determination to dismiss petitioner’s appeal from his son’s long-term suspension.

With respect to the two short-term suspensions (the two-day out-of-school suspension D.B. received on December 19, 2014 and the four-day out-of-school suspension D.B. received on December 23, 2014), there is no evidence in the record to indicate that petitioner appealed these short-term suspensions to the board, on a timely basis, or otherwise.  Thus, I will treat respondent’s letters notifying petitioner of the short-term suspensions on December 19 and December 23, 2014 as respondent’s final determinations.  With respect to D.B.’s five-day in-school suspension on November 12, 2014, which does not appear to be subject to appeal to the board of education pursuant to respondent’s code of conduct, it appears from the record that such letter constituted respondent’s final determination.

Where, as here, the record does not indicate when petitioner actually received the determinations, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays, such that the dates of receipt would have been November 18, December 26, and December 30, 2014.  Thus, petitioner would have had to commence his appeal on or before December 18, 2014, January 26, 2015[12] and January 29, 2015, respectively, for the claims to be timely.  The petition was served on May 21, 2015.  Therefore, with respect to the November 12, December 19, and December 23, 2014 suspensions, the petition must be dismissed as untimely. 

The petition is also untimely to the extent petitioner challenges various actions by district staff relating to the instruction provided to his son in the 2014-2015 school year and prior to January 2015, including such matters as respondent’s alleged refusal to provide teacher’s grade books to parents in addition to student grades, a teacher’s failure to daily correct homework, the employment of a substitute teacher, and his son’s transfer from an advanced math class.

To the extent petitioner seeks an order directing respondent to provide funding for alternative education or to complete “the grade 8 equivalent education denied by [r]espondent,” petitioner’s claim must be dismissed for failure to state a claim upon which relief may be granted.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

To the extent that petitioner seeks an order directing the identification, disclosure and discipline of district employees who made a report pursuant to Social Services Law §§413 and 422, such claim must also be dismissed for failure to state a claim upon which relief may be granted.  Pursuant to Social Services Law §422(4) and (5), such reports are confidential and, pursuant to Social Services Law §422(5), an unfounded report is legally sealed and may only be disclosed to persons or agencies listed in the statute, which does not include the Commissioner of Education, but does include the subject of the report.  Therefore, petitioner’s recourse, if he wishes to identify the persons who made the report, is to seek disclosure of the report pursuant to Social Services Law §422.[13]

Furthermore, Social Services Law §422(5)(b) provides that an unfounded report is not admissible in any judicial or administrative proceeding, with certain specific exceptions.  One of those exceptions is a civil action or proceeding brought by the subject of the report alleging false reporting.  An administrative appeal to the Commissioner under Education Law §310 is not a civil action or proceeding, which refers to a judicial proceeding.  Thus, petitioner’s recourse, if he wishes to seek redress from alleged false reporting, is to bring a civil action or proceeding in a court of competent jurisdiction and not an appeal to the Commissioner.  In any case, the specific relief of ordering disciplinary action could not be granted because the Commissioner has no authority to order the suspension or termination of a tenured employee absent an Education Law §3020-a hearing or to order disciplinary action against other school district employees (see Appeal of M.B. and M.B., 56 Ed Dept Rep, Decision No. 17,044; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,733).

Turning to the merits, because the petition is rambling and unclear with respect to pleading, requested relief and supporting documentation as noted above, and because the 12-day long-term suspension relates back to the conduct set forth in the December 23, 2014 notice (imposing a short-term suspension) which petitioner claims was defective, I will discuss the law both with respect to suspensions of five days or less and suspensions in excess of five days. 

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 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 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).  Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][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).

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). 

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).

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).  Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  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).

Although not entirely clear, the gravamen of petitioner’s complaint appears to be that the written notices of the short-term suspensions were deficient in that they did not comply with the Education Law and the Commissioner’s regulations and the student’s due process rights were violated.  However, as noted above, petitioner failed to appeal the short-term suspension notices to the Commissioner on a timely basis.  While respondent is admonished to fully comply with Education Law §3214(3)(b)(1) and §100.2(l)(4) of Commissioner’s regulations (8 NYCRR §100.2[l][4]) - particularly with respect to inclusion in the written notice of the right to request an immediate informal conference prior to the suspension of a pupil as well as proper delivery to assure receipt of the notice within 24 hours; not by regular mail - the relief sought by petitioner relating to the short-term suspensions cannot be granted due to untimeliness. 

With respect to the long-term suspension, the record indicates that the principal requested the superintendent’s hearing related to the December 2014 conduct and respondent admits that petitioner timely appealed respondent’s April 21, 2015 decision.  Subsequent to resolution of the scheduling issues by the district as noted above, the superintendent’s hearing was held on February 10, 2015.  The record indicates that as D.B. and petitioner were not present, the hearing officer entered a plea of not guilty and respondent presented its witnesses. 

The assistant principal, cafeteria monitor/teacher aide, and school counselor testified about the chain of events in December 2014 leading up D.B.’s 12-day long-term suspension, beginning with D.B.’s behavior in the cafeteria in which he slapped himself in the face and falsely (based on school video surveillance) claimed that the cafeteria monitor/teacher aide “hit” him. 

The assistant principal testified that D.B.’s conduct on December 19, 2014 in slapping himself and accusing a staff member of doing so was a violation of the middle school’s code of conduct and cafeteria rules.  The hearing transcript indicated that the misconduct was “quite serious” as it could have resulted in possibly ruining someone’s reputation. In addition, the cafeteria monitor/teacher aide testified that she was “shocked and stunned” by the behavior, but due to her experience with D.B. as angry, defensive and uncooperative, she acted quickly to diffuse the situation and “immediately left to get help from [a]dministration.”  The assistant principal testified that D.B. was then “escorted to [his] [o]ffice where [D.B.] refused to enter [] and refused to speak with [him] because [the assistant principal] would not allow [the] conversation to be tape recorded” as this was not allowed under the code of conduct. 

The school counselor testified that he was present when the assistant principal contacted petitioner by phone to inform him of the suspension for disorderly conduct and insubordination based on the above behavior.  The school counselor also testified that it was relayed to petitioner that D.B. would be suspended for two days (out-of-school) on December 22 and 23, 2014 at the Ormsby Center.  The assistant principal also testified that D.B. was informed of the dates of the suspension and the reasons for the suspension as well.  Further, evidence was provided from a district transportation employee indicating that she contacted petitioner on Saturday December 20, 2014 to notify him of the pick-up time for D.B. to be transported to Ormsby on Monday, December 22, 2014. 

Further testimony was given at the hearing that the charges listed in the February 5, 2015 notice of hearing of insubordination/acts of defiance (repeated actions), disorderly conduct, and willful disruption of normal school operations resulted when D.B., on December 23, 2014, “walked into first period class instead of attending the Ormsby Center for an assigned suspension,” thereby disrupting class, and again refused to speak with the assistant principal without taping the conversation.

After carefully reviewing the transcript, hearing officer’s findings of fact and recommendation, and the record before me, I find that the board’s April 21, 2015 decision to sustain the superintendent’s determination to suspend the student for the December 23, 2014 conduct was based on competent and substantial evidence that the student participated in the objectionable conduct.

The record indicates that on December 19, 2014, D.B. engaged in disorderly conduct that was disruptive when he slapped himself and accused a staff member of striking him.  The record also indicates that D.B. engaged in disorderly conduct on December 19 by refusing to sit in his assigned seat when directed to do so by the cafeteria monitor/teacher and by refusing to be questioned by the assistant principal about the incident in the cafeteria.[14] The record further indicates that D.B. did not report to the Ormsby Center to serve his two-day suspension on December 22 or December 23, 2014.  He was absent on December 22 and reported to his first period class on December 23 even though he had been informed that he was suspended and was not allowed on school property during his suspension.  Despite petitioner’s argument that the December 23, 2014 conduct resulted from petitioner and D.B. not knowing about the suspension imposed on December 19 to be served on December 22-23, 2014, I find ample evidence in the record that both petitioner and D.B. were aware of the suspension and that D.B. was directed to report to the Ormsby Center.  

The assistant principal testified that D.B.’s conduct interrupted his first period class, and that when D.B. was brought to the in-school suspension room, he refused to follow the rules of that room and disrupted the morning of the teacher involved.  The assistant principal further testified that it took about an hour to resolve the situation, interrupting his work day and that of the school counselor.  Such conduct clearly constitutes insubordination and willful disruption of normal school operations.

I also find that, with respect to the long-term suspension, petitioner was afforded an opportunity for a fair hearing upon proper notice for the February 10, 2015 hearing which petitioner and D.B. failed to attend.  Accordingly, I decline to expunge the 12-day long-term suspension from the student’s record based on lack of proper notice. 

I also note that respondent entered D.B.’s anecdotal record into evidence at the February 10, 2015 hearing.  A student’s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty, and only if notice of its contents has been given in advance to the student (Appeal of a Student Suspected of Having a Disability, 46 Ed Dept Rep 453, Decision No. 15,562; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337; Appeal of D.F.B., 43 id. 496, Decision No. 15,064).  I note that petitioner and D.B. were not present when D.B.’s anecdotal record was received into evidence at the hearing.  However, at the end of the proceeding, the hearing officer requested that the final determination and “anything that was presented here at this hearing be given to [D.B. and petitioner] following the hearing.”  Subsequently, the hearing officer’s findings of fact and recommendation stated that D.B.’s disciplinary history reflects “numerous disciplinary consequences for engaging in various acts of disorderly/disrespectful conduct ... most notably ... [D.B.’s] false report that a staff member assaulted him in the cafeteria.”  The hearing officer’s report concluded that D.B.’s behavior “reflects a pattern of rude and defiant conduct that has continued to occur despite having received prior disciplinary consequences for similar behavior” before recommending the penalty.    

It is unclear from the record whether notice of the contents of the anecdotal record was given in advance to petitioner and the student.  However, even excluding the student’s anecdotal record, I do not find the penalty so excessive as to warrant substitution of my judgment for that of respondent.  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).  I find that the penalty is not irrational or unreasonable, given the nature of the student’s conduct, and is within respondent’s discretion.

Finally, with respect to petitioner’s request for an investigation into the district’s practices as identified in his petition, I note that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

 

[2] The record indicates that the Ormsby Center is “the alternate school site for out-of-school suspension” located in East Aurora, New York.

 

[3] The notice also stated that the “[s]tudent is serving a previous suspension at Ormsby 1/5-1/6/15.” 

 

[4] This letter states that “[t]he superintendent’s office has received a request from Middle School Principal Jennifer Giallella to hold a Superintendent’s Hearing on the following [enumerated] charges” against D.B.  The charges in the January 8, 2015 letter were the same as in the December 23, 2014 notice.

 

[5] The hearing transcript indicates that, in attempting to reschedule the original hearing date of February 6, 2015, respondent’s attorney stated that petitioner “had indicated that he would not attend a hearing that was before 6:30 at night and ... he did not see that there was any reason to rush this forward and that he wouldn’t agree to a date unless it was at least three to four weeks out.” Respondent’s attorney stated that petitioner’s “requests were unreasonable” given the fact that his child was suspended. Respondent further states herein that the district went ahead and scheduled the hearing for February 10, 2015 and sent petitioner “notifications and e-mails” urging him to attend.

 

[6] Respondent’s answer states that petitioner enrolled D.B. in a private school in Canada “in or around January 2015” or “in or around February 2015” as noted in its memorandum of law.

 

[7] Petitioner’s reply states these dates as “December 24 and 27, 2015”; however, it appears that the correct dates are December 24 and 27, 2014. 

 

[8] Petitioner also refers to this date as 12/23/15 in his reply; however, December 23, 2014 appears to be the correct date based on the supporting exhibits in the reply. 

 

[9] Petitioner also refers to this date as 12/27/15 in his reply; however, December 27, 2014 appears to be the correct date based on the supporting exhibits in the reply. 

 

[10] Petitioner also refers to this date as 12/24/15 in his reply; however, December 24, 2014 appears to be the correct date based on the supporting exhibits in the reply. 

 

[11] Respondent specifically states that “[p]etitioner’s claims, with the exception of the appeal of the District’s April 21, 2015 decision, are untimely” including but not limited to petitioner’s claims relating to the short-term suspensions in November and December 2014.

 

[12] When a time period ends on a Saturday, Sunday or a public holiday, a document may be served on the next succeeding business day, in this case, January 26, 2015 (General Construction Law §25-a[1]).

 

[13] Where the subject of the report requests a copy of all information relating to the report, however, Social Services Law §422(7) provides that the Commissioner of the Office of Children and Family Services may deny a request to disclose the identity of the person who made the report where he or she reasonably finds that disclosure would be detrimental to the safety or interests of such person.

 

[14] Such conduct would ordinarily be considered insubordination, but the school district’s attorney stated on the record at the hearing that the insubordination charge related solely to D.B.’s conduct on December 23.  Respondent’s code of conduct, however, explicitly includes in its examples of disorderly conduct, “any willful act which disrupts the normal operation of the school community,” which is sufficiently broad to encompass D.B.’s insubordinate behavior.