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Decision No. 12,795

Appeal of HARRY J. BLISH, on behalf of his son, Todd Blish, from action of the Board of Education of the Elmira Heights Central School District, relating to student discipline.

Decision No. 12,795

(September 2, 1992)

Shull & Coyles, Esqs., attorneys for respondent, Donald B. Coyles, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a determination of the Board of Education of the Elmira Heights Central School District ("respondent") affirming the superintendent's decision to suspend petitioner's son for two days and to prohibit his participation in an athletic event. The appeal must be dismissed.

Petitioner's son attends respondent's high school. On Tuesday, February 25, 1992, the student was involved in two fights with another player on the varsity basketball team during a practice session. The coach did not interfere and after the altercation, both boys returned to practice. In response to a parent's complaint regarding the incident, the superintendent, in consultation with the high school principal and the athletic director, prohibited petitioner's son and the other student from participating in a post-season basketball game and decided to suspend the student for two days.

Petitioner and his wife met with the principal on February 27, 1992 to discuss their son's suspension. Later that day, petitioner and his wife also met with the superintendent and the principal and raised concerns that respondent had failed to follow proper procedures in instituting an athletic suspension and had violated their son's due process rights. On March 9, 1992, petitioner appealed the decision to the board of education, which affirmed the suspension. This appeal ensued. Petitioner's son has served his suspension.

Petitioner contends that respondent's imposition of both an athletic suspension and a two day academic suspension was improper because it constituted double punishment for the same conduct. Petitioner also alleges that respondent ignored its own administrative procedures when it suspended his son from a game. In essence, petitioner argues that respondent acted improperly when it accepted a complaint from the parent of another basketball player against its rules for reporting violations of the athletic rules of conduct. Petitioner asks that the suspension be annulled and his son's record relating to the incident expunged.

Respondent contends that its actions are consistent with its administrative policies in both the athletic handbook and its student handbook. Respondent also contends that its decision to prohibit this student from participating in a game and suspend him from school was proper.

Respondent's 1991-92 student handbook contains a discipline policy and outlines the procedures to be followed when a student is involved in a fight:

Advise parents

Parent conference or phone conversation

Suspension (possible up to 5 days)

Review Committee

(Suggestion - first offense minimum of 3 days In-School Suspension)

Education Law '3214(3)(d) provides:

In the case of a suspension by the principal pursuant to paragraph b of this subdivision, the pupil and the person in parental relation to him shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of complaining witnesses.

In this case, the incident leading to the student's suspension was investigated at the school district level and petitioner was given an opportunity to discuss the incident with the superintendent, the principal and the board of education. I note that respondent complied with the due process requirements of Education Law '3214(3)(d) and the district's student handbook by holding an informal conference with the principal to discuss the matter. According to the record, petitioner's son had an opportunity to explain his version of the facts to the principal. Accordingly, I find petitioner's claim that respondent violated due process and its own procedures without merit.

Regarding petitioner's contention that respondent violated the "Rules and Regulation for Athletes and Cheerleaders" by accepting a complaint from a parent who called the superintendent to discuss the matter, the policy in question provides for reporting violations of rules governing participation in interscholastic sports. The policy states:If an adult over age 18 and not a student ... wishes to report a violation of the rules of conduct, he or she must submit a signed affidavit to the Athletic Council stating the violation and any evidence that he or she has.

Pursuant to the policy, the athletic director is authorized to suspend the student from the athletic program. There is no indication, however, that the policy is intended to otherwise limit the general authority of school officials to investigate and take action in a matter that also involves violations of school rules. Accordingly, I find no violation of the board's athletic policy when the principal and athletic director, consistent with their general authority, suspended the student's participation in a game.

Regarding petitioner's claim that he was denied an opportunity to obtain review of the athletic disciplinary action against his son because an Athletic Council did not exist to hear his appeal, there is no evidence that he ever sought its review. Nonetheless, in response to petitioner's claim, respondent explains that the Athletic Council is convened on an "as needed" basis. Notably, the policy in the athletic handbook provides for the appointment of an Athletic Council whose members serve from June 30 to June 29 of the following year. Although petitioner correctly argues that respondent violated its own policies by failing to name an Athletic Council, it is not a basis for granting relief when he never sought its review.

Once a school district adopts a policy and procedures for disciplining students, it is bound to follow its own rules (Appeal of Pronti, 31 Ed Dept Rep 259; Appeal of Nuttall, 30 id. 351). Respondent is, therefore, reminded of its obligation to name an Athletic Council to handle future appeals consistent with its own rules and regulations.

Petitioner also argues that the imposition of both an athletic suspension and an out-of-school suspension was excessive. With regard to the penalty, I will not substitute my judgment for that of respondent unless the penalty is shown to be excessive (Appeal of Langenmayr, 30 Ed Dept Rep 322; Appeal of Lutes, 25 id. 396). It is not disputed that petitioner's son was involved in the fight with another student while participating in a school sponsored event. Under the circumstances, I do not find the penalty imposed excessive.

I have considered petitioner's other contentions and find them without merit.