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Decision No. 12,724

Appeal of KENNETH GOLDSTEIN from a determination of the Board of Education of the Rockville Centre Unified School District regarding a school suspension.

Decision No. 12,724

(June 26, 1992)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich and Scricca, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.-—Petitioner appeals from a five day suspension upheld by respondent’s board of education. The appeal must be dismissed.

Petitioner is an eighteen year old student in his senior year at South Side High School in respondent’s district. On September 11, 1991, while applying for a parking permit, petitioner became involved in an altercation with respondent’s security officer who demanded to see the student’s wallet. In the course of the dispute, another security officer discovered an unopened six-pack of beer in the back seat of petitioner’s car. Petitioner was subsequently suspended from school for 5 days for possession of alcohol. Thereafter, petitioner requested and was granted a full due process hearing. Based on the hearing officer’s finding that petitioner did not knowingly possess alcohol on school premises, he recommended that the student’s suspension be vacated and his record expunged. Respondent’s superintendent of schools rejected the hearing officer’s recommendation and upheld the suspension based on the fact that "knowing" possession was not an element of the school rule that petitioner allegedly violated. Respondent board of education denied petitioner’s appeal on December 17, 1991. This appeal ensued.

Petitioner alleges that respondent’s finding that he violated school rules without establishing that he had knowledge of possession of alcohol violates his due process rights under the United States Constitution. In particular, he argues that the superintendent’s findings as improper in light of the hearing officer’s finding that the student had no knowledge of the fact that there was beer in his car.

Respondent contends that petitioner fails to state a claim upon which relief can be granted. Respondent alleges that its actions were neither arbitrary, caprious nor unreasonable. To support its position, respondent argues that because its policy regarding alcohol and drugs requires mere possession, it was unnecessary to establish "knowledge" of possession. Respondent also argues that because it followed the proper procedures in suspending the student, petitioner’s claim that his due process rights were violated is without merit. Respondent further contends that petitioner only challenged his suspension when he realized that colleges to which he applied sought information concerning any disciplinary record.

Respondent’s defense of failure to state a claim upon which relief can be granted must fail. Section 275.10 of the Regulations of the Commissioner of Education provides:

The petition shall contain a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief. …Such statement must be sufficiently clear to advise the respondent of the nature of petitioner’s claim and of the specific act or acts complained of.

Petitioner is a student and is not represented by counsel. In such cases, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondent (Appeal of DeGroff, et al., 31 Ed Dept Rep 332; Application of a Child with a Handicapping Condition, 28 id. 519). Because I find that petitioner has stated his claims with sufficient clarity to enable respondent to prepare its pleadings, I shall consider the merits of this appeal.

Although I am concerned about the events leading up to the incident, I find no basis to overturn respondent’s decision to suspend this student. In suspension of 5 days or less, Education Law " 3214(3)(d) requires that the pupil and person in parental relation have an opportunity for an informal conference with the principal. In this case, respondent’s principal met with petitioner, then spoke to petitioner’s mother and also met with petitioner’s father regarding the charges. Thereafter, in response to petitioner’s request, respondent scheduled a full evidentiary hearing before an impartial hearing officer, and provided more due process than the law requires in suspensions of 5 days or less (Education Law " 3214(3)(d); see Goss v. Lopez, 419 US 565 [1975]). Therefore, I find no basis to conclude that petitioner’s due process rights were violated.

Respondent’s policy provides for suspension from school for, among other reasons, "[a]lcohol or [d]rugs- possession of or being under the influence of any amounts during and after school hours, at school, or at any school-sponsored activity away from school." The high school student handbook also advises students that they may be suspended for "possession or being under the influence of alcohol or drugs at any time." The impartial hearing officer concluded that the student had to have knowledge that he possessed alcohol to be found in violation of the above-mentioned rules. Notably, the school rule itself does not require knowledge. Therefore, despite the hearing officer’s decision, respondent was correct in concluding that petitioner’s lack of knowledge regarding the location of the beer was irrelevant to whether or not he violated the school rule. Accordingly, respondent was not bound by the hearing officer’s decision.