Appeal of M.H. from action of the Board of Education of the Sidney Central School District regarding student discipline.

Decision No. 17,330

(February 27, 2018)

Legal Services of Central New York, attorneys for petitioner, Christopher Smith, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Heather M. Cole, Esq., of Counsel

ELIA, Commissioner.--Petitioner, student M.H., appeals the determination of the Board of Education of the Sidney Central School District (“respondent”) to impose discipline upon him.  The appeal must be sustained in part.

Petitioner was a senior in respondent’s Junior-Senior High School (“high school”) at the time of the events described in this appeal.  On June 16, 2014, two students reported to the principal and the athletics director/assistant principal (“athletics director”) that the petitioner was acting inappropriately.  The principal and athletics director eventually located and spoke with petitioner.  Both administrators smelled alcohol on petitioner’s breath.  According to the principal, in response to a question as to whether he had been drinking, petitioner offered evasive responses.  The principal contacted petitioner’s father, who arrived at the school shortly thereafter.

Petitioner’s father met with the principal to discuss the incident and subsequently took petitioner to a police station to ascertain the petitioner’s blood alcohol level.  At the police station, an officer informed petitioner and his father that an officer at the high school could evaluate petitioner’s blood alcohol level, as the police department had dispatched an officer to the high school.  Petitioner’s father then drove him back to the high school, where an officer administered a blood alcohol test which did not produce a reading.  Following these events, the principal verbally informed petitioner’s father that he had imposed a five-day suspension for petitioner’s conduct.

In a letter dated June 17, 2014, the superintendent indicated that he would convene a long-term suspension hearing on June 20, 2014.  The hearing was rescheduled and held on June 26, 2014.

In a written decision dated June 27, 2014, the superintendent declined to impose any additional period of suspension upon petitioner beyond the initial five-day suspension.  However, based upon her conclusion that the petitioner attended school under the influence of alcohol, the superintendent barred him from district property and from participation in “any extra-curricular activities conducted on or off district premises, including all Senior class activities and graduation, through July 1, 2014.”  Petitioner appealed this determination to respondent.  In a letter dated July 9, 2014, respondent indicated that it upheld the superintendent’s determination in a board meeting held on June 8, 2014.  This appeal ensued.[1]

Petitioner argues that he was deprived of an opportunity to question complaining witnesses following the principal’s imposition of the short-term suspension on June 16, 2017.  Petitioner also raises various challenges to his long-term suspension, including an allegation that the district failed to establish his guilt as to the charged conduct through competent and substantial evidence.  Petitioner requests expungement of his short-term suspension and any reference to respondent’s prohibition on his attendance at graduation from his record.

Respondent denies petitioner’s assertions.  With respect to the short-term suspension, respondent argues that petitioner was, in fact, afforded an informal conference with the principal and that petitioner did not request to question complaining witnesses.  As for the long-term suspension, respondent generally contends that the district established petitioner’s guilt through competent and substantial evidence.  Respondent further argues that the superintendent appropriately decided to prohibit petitioner from attending graduation.

I note initially that 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, No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner’s suspension ended, and he graduated from respondent’s district, in June 2014.  To the extent that his suspension has been served and the graduation ceremony has already occurred, any claim regarding the appropriateness of these actions is moot (see e.g. Appeal of Kainz, 38 Ed Dept Rep 339, Decision No. 14,049).  Similarly, petitioner’s challenges to the long-term suspension hearing are moot because the superintendent did not impose any suspension beyond the student’s initial short-term suspension (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,305).  However, petitioner seeks expungement of the short-term suspension and the prohibition on his attendance at graduation from his record, and these claims remains live (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

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’s short-term suspension must be expunged for failure to provide written notice to petitioner and his parent pursuant to Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4).  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).

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).

Here, there is no proof in the record that respondent provided petitioner or his parent with written notice apprising them of their right to an informal conference with the principal and to question complaining witnesses as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4).  Although the record contains a written notice dated June 16, 2014, there is no indication in the record as to when this letter was sent or received.  Indeed, the copy of the letter in the record is stamped “received” by the Sidney Central School Superintendent’s Office on June 17, 2014.  But even assuming, arguendo, that this written notice was received by petitioner or his father, it would still be deficient as it did not inform petitioner or his father of their right to an informal conference with the principal or their right to question complaining witnesses.  Moreover, Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) require that the notice and opportunity for an informal conference be provided prior to the suspension unless the student's presence in school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  Here, the written notice did not, as required, reflect any such finding (see Appeal of a Student with a Disability, 56 id., Decision No. 17,110).

Although the record reflects that petitioner did, in fact, meet with the principal on June 16, 2014, the record does not indicate that petitioner was advised of his right to question complaining witnesses at or prior to this meeting (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of B.B., 49 id. 253, Decision No. 16,017).  While the principal attests in an affidavit that petitioner “did not ask to speak with any additional witnesses,” any fault lies with respondent, which did not apprise petitioner of his right to request such questioning.  Thus, on this record, the written suspension notice violated both Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4).  Consequently, the student’s five-day suspension must be expunged from his record (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).

Although the student’s short-term suspension must be expunged from his record for procedural reasons, I decline to disturb the superintendent’s determination that the student could not attend his graduation ceremony.  Although the superintendent rendered this decision in connection with a disciplinary matter, the due process protections of Education Law §3214(3)(c)(1) do not apply to a privilege such as participation in graduation ceremonies (see Appeal of Landsiedel, 33 Ed Dept Rep 677, Decision No. 13,193).  Prohibiting a student from participating in graduation is akin to an extracurricular suspension, which is not governed by Education Law §3214 and does not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).

Here, petitioner, who was represented by counsel, was afforded an opportunity to discuss the conduct being reviewed before a hearing officer on June 27, 2014.  Although the superintendent ultimately decided to bar petitioner from graduation, petitioner nevertheless received a full and fair hearing where he was able to discuss the student’s conduct with a hearing officer, the superintendent’s designee (see Education Law §3214[3][c][1]).  Under these circumstances, petitioner received more than ample opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline.[2]  Therefore, to the extent petitioner’s record reflects that he was prohibited from attending the June 2014 graduation ceremony, I decline to expunge any such reference.

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

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent’s short-term suspension of the student imposed on June 16, 2014 be annulled and expunged from his record.

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