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Decision No. 13,352

Appeal of BERNITA BUSSFELD, on behalf of her son, MICHAEL, from action of the Board of Education of the Roscoe Central School District regarding student discipline.

Decision No. 13,352

(February 6, 1995)

Hogan & Sarzynski, Esqs., attorneys for respondent, John P. Lynch, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges a disciplinary action taken by the Board of Education of the Roscoe Central School District ("respondent") against her son, Michael. The appeal must be sustained.

During the summer of 1994, Michael was enrolled in respondent's driver education course. On August 9, 1994, principal Glantzis sent the following letter to petitioner and the parents of three other students:

As you may or may not know, money was taken from a student's wallet after it fell out of the student's pocket. This incident occurred on Tuesday, August 2, 1994. Based upon the information I have received I have been able to narrow the time-frame of the incident to sometime during the second driving session on the day the incident occurred. The empty wallet was found on the floor in the back of the car by a student in the second group.

I urge you to talk to your child about this incident and encourage him or her to approach either myself or Mr. Colpoys, the Acting Superintendent with any information about the incident.

I must inform you that if the money is not returned by the end of the week your child will not be permitted to complete the Driver Education Course and as such will not receive credit.

Should you have any information or questions regarding this matter please do not hesitate to contact me at school.

On Friday, August 12, 1994, Michael and the three other students were not allowed to participate in the driver education course. On the morning of Monday, August 15, 1994, the students were again denied permission to attend the course unless the money was returned. Later that day petitioner wrote a check to principal Glantzis for the amount allegedly stolen and the students were permitted to attend class. On August 16, 1994, petitioner complained of principal Glantzis' actions to the acting superintendent. On August 24, 1994, petitioner requested that respondent rescind the actions taken by principal Glantzis. Respondent rejected that request, and this appeal ensued.

Respondent contends that the appeal must be dismissed as untimely. Respondent asserts that it denied petitioner's request on August 24, 1994 and petitioner did not commence this appeal until October 7, 1994. While petitioner was approximately two weeks late in instituting this appeal, I will excuse that delay (See 8 NYCRR 275.16). Because the delay in this matter is minimal, there is no evidence of prejudice to respondent and petitioner raises important issues with respect to student discipline, the interests of justice would not be served by dismissing this appeal as untimely (Matter of Young, 21 Ed Dept Rep 463).

Respondent also maintains that this appeal should be dismissed as moot since petitioner paid the money requested and Michael was permitted to complete the driver education course. I find that argument disingenuous. The disciplinary action imposed on Michael may be part of his student records. Moreover, the funds extracted from petitioner by principal Glantzis have not been returned.

In her papers, petitioner requests various forms of relief against principal Glantzis. Petitioner, however, has not named principal Glantzis as a party to this appeal. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a party (Appeal of McCall, 34 Ed Dept Rep 29; Appeal of Basile, 32 id. 330; Appeal of Osterman, 30 id. 290). Because a ruling in petitioner's favor on requests for relief against principal Glantzis would adversely affect him, petitioner's failure to join him requires dismissal of those claims for relief against him.

Turning to the merits, the procedures set forth in Education Law '3214 regarding student discipline are not applicable to students attending summer school (Application of Olsen, 40 Misc. 2d 246). However, disciplinary action cannot be imposed on a student attending school in complete disregard of due process. (SeeGoss v. Lopez, 419 U.S. 565). Minimal due process requires that an individual be afforded "an opportunity to appear informally before the person or body authorized to impose discipline and to discuss the factual situation underlying the threatened disciplinary action." (SeeMatter of O'Connor v. Bd. of Ed., 65 Misc 2d 40, 43). In this case, there is no indication that petitioner or Michael were afforded even minimal due process before disciplinary action was imposed. In fact, neither petitioner nor Michael were even given the chance to discuss the matter with principal Glantzis. Accordingly, respondent's actions in this matter violate principles of fundamental fairness.

In addition, discipline may only be imposed upon a student when there is proof of misconduct in the record. Moreover, there must be a reasonable degree of certainty that the student charged engaged in or participated in the misconduct (Matter of Swain, 17 Ed Dept Rep 412; Matter of Schaefer, 14 id. 121; Matter of Post, 9 id. 107). In this case, there is no evidence to indicate that Michael is guilty of any misconduct. The record merely shows that principal Glantzis determined that money had been taken from a student's wallet and that, in his opinion, it was probably taken by one of four students, possibly Michael. Principal Glantzis' threatened punishment of all four students because one of the four may have been guilty of misconduct has no rational basis and is arbitrary.