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Decision No. 13,050

Appeal of D.M., on behalf of her son K.M., from action of the Board of Education of the Brentwood Union Free School District, relating to student discipline.

Decision No. 13,050

(November 23, 1993)

Bernard T. Callan, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals her son's suspensions from school for insubordination and for fighting. The appeal is dismissed.

Petitioner's son, K.M., is a student at the East Middle School of the Brentwood Union Free School District ("respondent"). On May 27, 1993, he was suspended for five days for refusing to comply with the principal's directive to remove his vest in school. This directive was issued in accordance with respondent's unwritten policy prohibiting outer clothing from being worn in the school building. The principal spoke to petitioner's son about the incident before suspending him. After discussing this suspension with petitioner on June 2, 1993, the principal reduced the suspension to three days.

On June 10, 1993, petitioner's son was again suspended for two days, this time for kicking another student. This fight allegedly began with a verbal altercation on school grounds which escalated to a physical altercation adjacent to school grounds. A crowd of between fifty to one hundred students purportedly gathered to observe the fight. Petitioner's son, although not involved in the initial fight, allegedly kicked a student involved in the fight after that student had fallen to the ground. An assistant principal investigated the incident, giving rise to petitioner's son's suspension. The assistant principal obtained eye-witness statements and a statement from a non-witness student to whom petitioner's son allegedly admitted kicking the fallen student four times. The principal spoke to petitioner's son about the incident before suspending him. At petitioner's request, the superintendent investigated both suspensions and on June 18, 1993 upheld both suspensions. This appeal was commenced on August 16, 1993.

Petitioner alleges that respondent's suspension of her son for failure to adhere to a directive to follow an unwritten dress code is arbitrary and capricious and violates her son's First Amendment right to free speech. She further alleges that her son's due process rights were violated when he was suspended for fighting.

Respondent contends the appeal is untimely and the petition is so unclear as to preclude a meaningful response. Respondent further asserts that its dress code is appropriate and does not violate students' free speech rights. Respondent also contends that the imposition of a suspension for this student's failure to remove his vest was proper since his refusal to comply with the principal's directive constituted insubordination. Concerning petitioner's due process claim, respondent contends that it fully complied with Education Law '3214 in suspending K.M.

Before reaching the merits of petitioner's claims, I will first address the procedural issues. An appeal to the Commissioner must be instituted pursuant to 8 NYCRR 275.16 within 30 days from the making of the decision or the performance of the act complained of. However, the Commissioner may excuse a failure to commence an appeal for good cause shown. Respondent argues that petitioner should have commenced this appeal within 30 days of the superintendent's June 18, 1993 decision to uphold the suspensions. Petitioner sought review of the matter by the school board on June 23, 1993. The record reflects that the board of education did not act in response to petitioner's request. Because petitioner was apparently awaiting a response from respondent, I will excuse her delay in filing the petition.

Respondent also contends that the petition is defective because it does not contain a clear and concise statement of the claim showing that petitioner is entitled to relief, as required by 8 NYCRR '275.10. I note that petitioner is not represented by counsel. In such cases, a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing party (Appeal of Savastano, 32 Ed Dept Rep 114; Application of a Child with a Handicapping Condition, 28 id. 519). I find that the petition sufficiently frames petitioner's claim for relief so that respondent was able to effectively address petitioner's allegations in its answer. Because respondent has failed to establish that it was prejudiced by petitioner's drafting, I will not dismiss the appeal on that basis (Appeal of Savastano, supra; Appeal of Schechter, et al., 28 Ed Dept Rep 118).

Concerning the merits, although petitioner asserts her son's First Amendment rights were violated by requiring him to remove his vest, there is no evidence in this record that K.M.'s vest is symbolic speech representing a statement of either political or religious expression (see, West Virginia Board of Education v. Barnette, 319 US 624; Zorach v. Clauson, 343 US 306). Accordingly, its wearing does not trigger First Amendment protections, and I find no basis to conclude that K.M.'s right to wear the vest in school was constitutionally based.

Concerning the appropriateness of petitioner's son's suspension for insubordination, a decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Pierrot, 33 Ed Dept Rep 67; Appeal of Kittell, 31 id. 419). Although petitioner appears to assert otherwise, her son was suspended for insubordination, not for violation of the dress code. To the extent that the student ignored the principal's directives to remove his vest, his actions constitute insubordination and may form the basis for disciplinary action under Education Law '3214 (Appeal of Pintka, 33 Ed Dept Rep ___, Decision #13034, dated November 2, 1993). The record in this case contains both competent and substantial evidence that K.M. refused to remove his vest when directed to do so. Accordingly, he was correctly found guilty of insubordination.

Regarding petitioner's assertion that respondent failed to provide her son with the process due him prior to suspension on June 10, 1993, the imposition of discipline must meet the standards of fairness established by the Commissioner's regulations 8 NYCRR 100.2(l). Among other things, '100.2(1) requires that a parent be given written notice of her right to request an immediate informal conference with the principal (8 NYCRR 100.2(l)(4)). The record indicates that petitioner was so notified. Moreover, contrary to petitioner's assertion, the record reflects that the principal spoke to petitioner's son prior to the suspension. Finally, petitioner personally discussed this suspension with the principal. Therefore, this suspension met the standards of fairness established by 8 NYCRR 100.2(l).

Moreover, petitioner incorrectly asserts that respondent lacked jurisdiction to suspend her son because the incident occurred off school grounds. Conduct which occurs off school grounds may still be the basis for disciplinary action when such conduct may endanger the health or safety of pupils within the educational system (Matter of Pollnow, 22 Ed Dept Rep 547; Matter of Rodriguez, 8 id. 214). The incident for which petitioner's son was suspended began on school grounds and ultimately involved between fifty to one hundred student observers. School officials are authorized to impose disciplinary sanctions for such an incident that started on school grounds and resulted in the involvement of so many students (Matter of Pollnow, supra).

I have reviewed petitioner's other claims and find them without merit.