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Decision No. 13,437

Appeal of MARK and LAURA EPSTEIN, on behalf of their son, MICHAEL, from action of the Board of Education of the Islip Union Free School District, regarding student discipline.

Decision No. 13,437

(June 27, 1995)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Neil M. Block, Esq., of counsel

SOBOL, Commissioner.--Petitioners challenge respondent's suspension of their son, Michael, from school for two days. The appeal must be dismissed.

On April 29, 1994, a teacher serving as the monitor for an in-school suspension class in a high school in respondent's district was compelled to tell Michael and several other students to stop engaging in disruptive behavior. The students continued misbehaving and caused a security aide, Ms. Massie, to enter the classroom. Ms. Massie observed Michael kneeling on his chair while engaged in loud conversations with other students. Ms. Massie heard Michael exclaim, "look at her tits." Ms. Massie told Michael to sit down three times. Michael sat down on the third request but continued talking.

Later that date, Ms. Massie stated in a letter to the dean of students, Mr. Wandle:

In my eight years of employment in this school I have never seen a more unruly group of students. There was nothing that would stop them from misbehaving.

On that same date, Mr. Wandle spoke to the four students involved, including Michael. Michael acknowledged to Mr. Wandle that he was talking and disruptive during class. Two other students corroborated Michael's admission.

On April 29, 1994, respondent's principal imposed a two day out-of-school suspension against Michael and three other students. On that same date, Mr. Wandle phoned petitioners to inform them of Michael's suspension for gross insubordination while serving in-school suspension. Mr. Wandle invited petitioners to come to school to discuss the suspension, but they declined. Mr. Wandle further informed petitioners that Michael had made sexually suggestive remarks to the teacher and advised petitioners that if, upon investigation, it was determined that those remarks constituted sexual harassment, additional penalties would be imposed.

On May 2, 1994, Michael and Mrs. Epstein met with Mr. Wandle and Ms. Massie regarding the suspension. Mrs. Epstein was informed that she could make arrangements to speak with the classroom teacher by contacting the guidance department. On that same day, Mrs. Epstein, Michael, Mr. Wandle and Ms. Massie met with the principal regarding the suspension. At this meeting Michael acknowledged that he had been talking during in-school suspension and continued to talk after being directed to stop by the teacher and Ms. Massie. No additional charges regarding sexual harassment were brought against Michael.

On May 12, 1994, Mrs. Epstein met with an assistant superintendent to discuss the suspension. On June 3, 1994, the superintendent met with Michael to discuss the suspension. On June 30, 1994, the superintendent met with petitioners and Michael to discuss the suspension. On September 13, 1994, petitioners appealed Michael's suspension to the board of education during an executive session. In a decision dated September 14, 1994, respondent upheld the suspension. This appeal followed.

Petitioners contend that respondent failed to afford Michael due process in accordance with Education Law '3214 and Commissioner's regulations '100.2. They further assert respondent violated the Family Educational Rights and Privacy Act (FERPA). Respondent contends Michael was afforded all appropriate due process and that the Commissioner has no jurisdiction over matters involving FERPA.

I find meritless petitioners' due process claims under Education Law '3214 and Commissioner's regulations '100.2. Procedures governing the discipline of students must be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose discipline (Appeal of Allert, 32 Ed Dept Rep 242; Appeal of Forster, 31 id. 443; Appeal of Danison, 31 id. 169; 8 NYCRR '100.2(l)(4)). Additionally, Education Law '3214(3)(d) states that in a suspension of five days or less:

... 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.

The record here establishes that prior to his suspension, Michael met with Mr. Wandle to explain his version of the events. Additionally, the record indicates that prior to Michael's suspension, five other students were interviewed in addition to the complaining witness, Ms. Massie and the teacher. Moreover, on the first day of the suspension, Mrs. Epstein and Michael had two separate meetings with school officials. First they met with Mr. Wandle and Ms. Massie and then they met with the principal, Mr. Wandle and Ms. Massie. Thereafter, Mrs. Epstein had a meeting with an assistant superintendent, a subsequent meeting with the superintendent and later presented her case to the board of education. Thus, petitioners and Michael were clearly given several opportunities to discuss the suspension and to interview Ms. Massie, the complaining witness.

Although petitioners assert that the teacher is a complaining witness with whom they did not speak, I disagree. The record reflects that Ms. Massie filed the complaint with Mr. Wandle, not the teacher. Therefore, Ms. Massie was the complaining witness and petitioners had the opportunity to question her on several occasions. Moreover, petitioners were offered an opportunity to speak to the teacher, but made no effort to do so. Therefore, I find the procedures followed by respondent met the standard of fairness articulated in Forster, supra, and required under Education Law '3214(3)(d).

Petitioners correctly assert, however, that the notice of Michael's suspension did not comply with Commissioner's regulation '100.2(l)(4). The regulation requires written notice to be conveyed to the parent of a student being suspended by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension. The regulation also requires notice be provided by telephone, where possible. The regulation is written in a manner calculated to give parents notification within 24 hours of a suspension, so that they can exercise their right to meet with school officials. The record in this case reflects that school officials failed to send the written notice of Michael's suspension by express mail, and that petitioners did not receive notice of the suspension until it was over. However, there is no dispute in the record that a school official notified petitioners of the suspension in a telephone conversation immediately after its imposition. As a result of this verbal notice, petitioners were able to meet with school officials to discuss their son's suspension. While school officials should clearly have undertaken better efforts to convey written notice of the suspension to petitioners earlier, their failure in this case amounts to nothing more than a technical violation of the regulation, because petitioners were, in fact, made aware of the suspension within 24 hours. Thus, they were not prejudiced by respondent's technical error, and I will not invalidate the suspension on this ground alone. However, I admonish respondent to send future written suspension notices in a manner calculated to be received by parents within 24 hours, in compliance with Commissioner's regulation '100.2(l)(4).

Petitioners also assert that respondent violated FERPA (20 USC '1232g, 34 CFR '99.22). The United States Department of Education has sole authority to enforce FERPA. Accordingly, I have no jurisdiction to review petitioners' FERPA claims (Appeals of Children with Handicapping Conditions, 32 Ed Dept Rep 2).

I have considered petitioners' remaining contentions and find them without merit.