Decision No. 13,976
Appeal of DENISE MCMAHON, on behalf of LAVERNE BLOSS, from action of the Board of Education of the City School District of the City of Rochester and Dr. Clifford Janey, Superintendent, regarding student discipline.
Appeal of JOAN MOSELY and JACQUELINE SUMMERSETT on behalf of their children, JUSTIN SUMMERSETT, CORRINNE and LASHAUNDA MOSELEY, from action of the Board of Education of the City School District of the City of Rochester and Dr. Clifford Janey, Superintendent, regarding student discipline.
Decision No. 13,976
(July 30, 1998)
The Legal Aid Society, attorney for petitioners, Patti W. Moss, Esq., of counsel
Louis N. Kash, Esq., attorney for respondents
New York Civil Liberties Union, Elizabeth L. Schneider, Esq., amicus curiae
MILLS, Commissioner.--Petitioners appeal the determinations of the Board of Education of the City School District of the City of Rochester and Superintendent Clifford Janey ("respondents"), concerning student discipline imposed on their children. Because the appeals contain similar issues of fact and law, and pursuant to agreement between the parties, the appeals are consolidated for decision. They must be sustained in part.
In the first appeal, petitioner McMahon challenges the suspension of her son, LaVerne Bloss, from school on May 1, 1996. During the 1995-96 school year, LaVerne was in the fifth grade at respondents’ School #43. He was suspended from school by the vice-principal and charged with "possession of and discharging incendiary devices, snappers." On May 6, 1996, petitioner McMahon received a letter from respondents giving her the choice of waiving the Education Law "3214 hearing or requesting a hearing by completing a form provided with the letter and returning it to the district within three days. On May 8, 1996, petitioner McMahon delivered the form to respondents requesting that a hearing be scheduled. On May 13, 1996, LaVerne was provided with home tutoring. LaVerne’s superintendent’s hearing was scheduled for May 16, 1996, on the twelfth day of his suspension. This appeal ensued. LaVerne returned to school on May 15, 1996. Petitioner McMahon’s request for interim relief pending a determination on the merits was denied on May 31, 1996.
In the second appeal, petitioner Mosely similarly challenges the disciplinary penalties imposed on her children. On May 1, 1996 petitioner Mosley's children, Corinne and LaShaunda, were suspended for assault-related offenses. They were sent home from school that day at 12:00pm, but petitioner Mosely alleges that she was not notified that the students were sent home until 3:30pm. On May 6, 1996, petitioner Mosely received letters informing her that the students had been suspended for the assault related offenses. On May 10, 1996, petitioner Mosely received two letters from respondents’ Director of Student Affairs notifying her that the students had been recommended for long-term suspensions. The proposed disposition in respondents’ letters was "successful completion of the district’s Intensive Intervention Program." Petitioner Mosely was also informed that the students could begin the alternative education program on May 8 and 9, 1996, but since she did not receive the letters until May 10, 1996, Corinne and LaShaunda did not receive instruction until May 13, 1996. The student suspension hearings were scheduled on May 22, 1996. Due to the family’s request for an extension to seek legal representation, the hearings were rescheduled to May 29, 1996.
On June 1, 1996, petitioner Mosely received the superintendent’s letter dated June 1, 1996 informing her that he had accepted the hearing officer’s recommendation and found LaShaunda guilty of assaulting a student and recklessly assaulting a staff member. He also determined that LaShaunda would be assigned to Josh Lofton High School with a review of placement in October 1996.
On June 3, 1996, petitioner Mosely received a letter from the superintendent concerning Corinne’s student suspension hearing. That letter informed petitioner Mosely that the superintendent had accepted the hearing officer’s recommendation, and found that Corinne had assaulted two students and that she was to remain at the Clinton Avenue Tutoring Center for an additional ten days, but would be allowed to return to school on June 13, 1996.
Also, in the second appeal, petitioner Summersett challenges the suspension of her son, Justin. During the 1995-95 school year, Justin was a seventh grade student in respondents’ middle school. On April 11, 1996, petitioner Summersett received a letter from the principal informing her that Justin had been suspended. On April 18, 1996, petitioner Summersett received a hand-delivered letter from respondents’ Director of Student Affairs containing respondents’ standard waiver provisions, which offered petitioner the option to hold a student suspension hearing or waive it. The student was directed to begin alternative instruction on April 22, 1996, after three school days without instruction. On April 19, 1996, petitioner Summersett mailed a hearing request to respondents. A hearing was scheduled for April 29, 1996, but at the family’s request, the hearing was postponed until May 5, 1996 so that a witness could appear. On May 10, 1996, petitioner Summersett received a letter from respondents’ superintendent concerning the hearing officer’s findings of guilt and recommendation that Justin remain at the Clinton Avenue Learning Center for the rest of the school year and participate in the district’s "Intensive Intervention Counseling Program" before returning to school. The second appeal ensued.
In the first appeal, petitioner McMahon alleges that respondents’ system of student discipline violates Education Law "3214 since it requires a parent to either request a hearing which results in a student being out of school for a greater length of time than it would if the parent chose the proposed disposition by the district. Petitioner McMahon alleges that this system of "plea bargaining" is inappropriate and seeks a discontinuance of respondents’ practice of failing to schedule a hearing for suspended students unless specifically requested by a parent or guardian. Petitioner McMahon also alleges that respondents violated the district's administrative handbook by refusing to allow LaVerne to take required state examinations during the period of his suspension. Petitioner McMahon seeks an award of compensatory instruction.
In the second appeal, petitioners Mosely and Summersett seek an order annulling the suspensions of their children; requiring respondents to automatically schedule the due process hearing required under Education Law "3214; requiring respondents to provide the due process hearing before the sixth school day of the suspension; requiring that alternative instruction be provided immediately after the suspension from school; requiring sufficient notice to students and parents including a copy of the suspension referral packet; directing reinstatement of the students to the same school or another full-time educational program when a hearing is not provided by the fifth day; affording each student due process rights, including notice of hearing, notice of charges and a written decision with reasons for that decision; requiring reinstatement of students to the same school or equivalent full-time program on the sixth day of suspension pending the decision of the superintendent; mandating the discontinuance of the practice of rendering indefinite suspensions and automatic penalties for certain misconduct; directing the review and revision of the disciplinary handbook and policies consistent with Education Law "3214 and 8 NYCRR 100.2(l)(1) and (2); and an expungement of all references to the suspensions.
Respondents submitted a consolidated answer pursuant to agreement with petitioners’ counsel. The parties also agreed that respondents would waive their defenses of timeliness and exhaustion of administrative remedies and agreed to a schedule for the filing and service of pleadings. Respondents contend that petitioners have no standing to contest the validity of its waiver provisions, since they did not waive their right to a hearing and had a timely hearing pursuant to proper notice. Respondents argue that in the alternative, the appeals are moot with regard to waivers offered to these students. On the merits, respondents contend that their policy of waiving the student suspension hearing is consistent with the Education Law and is constitutionally permissible. Respondents argue that their waiver system is not burdensome, prejudicial or unlawful. Respondents further contend that petitioners are not entitled to alternative education, but were nevertheless provided with alternative education in a timely manner. Finally, respondents argue that since petitioners did not file a class appeal, their assertions based on "information and belief" regarding other students should be disregarded.
This is a case of first impression, since no school district in this State has attempted to interpret Education Law "3214 in the manner in which respondents do in this appeal. Due to the number and significance of issues raised in this appeal, they are delineated by category for purposes of analysis.
- STANDING AND MOOTNESS
Before reaching the merits, I will address respondents’ procedural defenses of standing and mootness. Respondents argue that since the petitioners did not choose to waive their due process rights under Education Law "3214 or waive their right to a hearing, they have no standing to challenge respondents’ system of permitting a waiver of that hearing. They further contend that petitioners' claims are moot.
To maintain an appeal pursuant to Education Law "310, a party must be aggrieved in the sense of having suffered personal damage or impairment of his or her civil, personal or property rights (Appeal of Wenger, 37 Ed Dept Rep 5; Appeal of Szymkowiak, 36 id. 204; Appeal of Goloski, 34 id. 565). Petitioners argue that they have standing to raise the issues of due process and fundamental fairness of respondent’s disciplinary system since they were subject to it. Petitioners also argue that since they have requested annulment of the suspensions and expungement of the students’ records, the matter is not moot. Petitioners contend that the interests of justice will not be served by the dismissal of these appeal because they are challenging the legality of certain ongoing district policies and practices (Appeal of a Student with a Disability; 35 Ed Dept Rep 466; Appeal of Bussfeld, 34 id. 383; Appeal of Aarseth, 32 id. 506).
I reject respondents' claim that petitioners lack standing because they chose not to exercise the waiver option. As is evident from this appeal, petitioners declined to waive their rights because they believed the waiver process to be contrary to law. Moreover, petitioners were subject to respondents’ current disciplinary system and are alleging a significant deprivation of their due process rights under that system. Accordingly, I find that petitioners were aggrieved by respondents’ waiver system, and decline to dismiss the appeal for lack of standing (Appeal of Folsom, 37 Ed Dept Rep 347; Appeal of Galay, et al., 37 id. 128).
I also reject respondents’ argument that the issues regarding waiver are moot. The Commissioner of Education will only decide matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent event have laid to rest (Appeal of a Student with a Disability, 37 Ed Dept Rep 68; Appeal of Greening, 36 id. 394). Although the issues regarding petitioners’ ability to choose the waiver are technically moot, these appeals raise important educational issues that will obviously be repeated since the waiver system is now district policy and will apparently be applied district-wide. Therefore, I decline to dismiss the appeals on mootness grounds as well.
B. INTERPRETATION OF EDUCATION LAW "3214
Education Law "3214(3) provides, in pertinent part:
c. No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf.
The focus of petitioners’ challenge is on respondents’ waiver system, which notifies parents that the student is subject to a long-term suspension and gives the parent the opportunity to either accept the district's proposed disposition without a "3214 hearing, or request a hearing by timely returning a form to the district. Petitioners argue that Education Law "3214 mandates a hearing under every circumstance, and that respondents may not offer students and parents the option to waive a hearing, even if the student and parent wish to do so and have been fully informed of their rights.
Petitioners reach this conclusion through reliance on statutory construction and legislative history. They argue that, had the Legislature intended the suspension hearing to be optional, it would have used the term "on request" or some other term to connote its permissive nature. Petitioners also recite the legislative history of Education Law "3214 and its subsequent amendments and contend that respondents’ interpretation of the term "opportunity" as granting only the chance for a hearing and not mandating a hearing itself is illogical and contrary to legislative intent.
Respondents counter that the plain language of the statute supports the district's interpretation that it must offer the student and parent an opportunity for a hearing, but that if the student and parent are offered a hearing and freely and knowingly waive their right to that hearing, the requirement of the statute has been fulfilled. Respondents thus contend that the district's general procedure --permitting suspended students and their parents to waive the due process "opportunity for a fair hearing" -- complies with Education Law "3214. In the district's defense, respondents state that the district has experienced a dramatic increase in the number of students referred for long term suspensions, from 836 in 1993-94 to approximately 1100 in 1995-96. Respondents argue that when the district automatically scheduled fair hearings for every student referred for long-term suspensions, approximately 30% of the hearings were adjourned. When the hearings were ultimately held, respondents allege that approximately 75 to 80% of the students did not contest the misconduct charges and that during the 1993-94 and 1994-95 school years, approximately 93% of the students were found guilty of the charges. Respondents argue that since the district imposed its waiver procedure, approximately 60% of the students have waived their right to a hearing while 40% have requested a hearing. Respondents contend that the district's new system has facilitated the scheduling of hearings more quickly than in the past, resulting in greater efficiency without any diminution of due process to students.
In interpreting a statute, the plain meaning of the words govern (New York Jurisprudence 2d, Statutes, "102) and a court must give effect to the plain meaning of the words and apply them in accordance with their express terms (Zaldin v. Concord Hotel, 48 NY2d 107, 421 NYS2d 858). Each word in the statute should be given its appropriate meaning (People v. Owens, 101 Misc2d 891, 422 NYS2d 343). When the statutory language is doubtful or ambiguous, inquiry into the legislative intent is appropriate (Wells v. State, 130 Misc2d 113, 495 NYS2d 591, aff’d 134 AD2d 874).
In my view, the plain meaning of the word "opportunity" is clear on the face of the statute. "Opportunity" is defined as "a favorable or advantageous circumstance or combination of circumstances, or a favorable or suitable occasion or time" The American Heritage Dictionary of the English Language, Third Edition. "Opportunity" is also defined as "a time or condition favorable for a particular action or aim" The New Shorter Oxford English Dictionary on Historical Principles, Fourth Edition, 1993. Another dictionary definition is "an occasion offering a possibility, a chance" (Chambers 21st Century Dictionary, First Edition, 1996. Thus, opportunity can most simply be defined as a "chance." This definition is consistent with respondents’ interpretation of Education Law "3214, since all students subject to long term suspensions are given a chance to have a hearing, but may not desire a hearing to dispute the charges or the imposed penalty.
Although the term "opportunity" when used in the statute appears to be unambiguous, given that respondents’ interpretation of "3214 is novel, I have also examined the legislative history for insight into the Legislature's intent in enacting "3214. My examination of that history, however, is inconclusive. The legislative history does not address whether the hearing itself is mandatory in every instance. Moreover, I disagree with petitioner's argument that subsequent amendments to "3214 evince such an intent. Rather, the legislative history only indicates an intent to establish the parameters of the due process available in a "3214 hearing. Absent specific contradictory legislative history, the plain meaning of the words in the statute is compelling and must prevail. Thus, I find that the statute only requires respondents to afford a student the opportunity, or chance, for a hearing, and that that opportunity may be voluntarily and knowingly waived by a student and parent, as discussed below.
C. CONSTITUTIONAL DUE PROCESS
The Supreme Court in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, established the parameters of due process in student suspension cases:
A student’s legitimate entitlement to a public education [is] a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that clause.
Although Goss and its progeny have defined the scope of student due process rights in public education, none of those cases would seem to require that a hearing be held in every instance. Rather, Goss stands for the proposition that any disciplinary procedures used in school must meet minimal standards of fairness and due process. Much room for interpretation is left to the States to determine what constitutes due process, and that is the crux of the matter in this appeal.
Absent any constitutional requirement that the student suspension hearing under Education Law "3214 must be held in every instance, I find that the district’s waiver system meets the constitutional standards enunciated in Goss. Respondent is not proposing to eliminate the due process hearing, but merely establishing a system that offers the hearing but permits a waiver of the student suspension hearing if the parties choose that option. No student who wishes to have a timely suspension hearing, with the right to counsel, to question witnesses, etc., is denied that opportunity. Therefore, I find that the constitutional due process requirements of Goss are met by respondents’ system as long as it provides safeguards to ensure a voluntary, knowing and intelligent waiver of right to a due process hearing under Education Law "3214.
D. WAIVER OF A MINOR’S DUE PROCESS RIGHTS
Petitioners assert that, assuming that waiver is permissible, the parent of a student cannot waive the due process rights of a minor, except in limited circumstances. To support this proposition, they argue that under the New York State Constitution, Art. XI, Section 1 and Education Law "3202(1), minors have a constitutional and statutory right to a public education. Given this right, petitioners allege, a minor cannot be presumed to have waived his or her due process rights as set forth in Education Law "3214 by merely signing a waiver form.
Respondents argue that both constitutional and statutory rights may be waived in virtually all cases, except those few involving matters "fundamental to the fabric of society" (Nishman v. De Marco, 430 N.Y.S.2d 339; People v. Suttell, 492 N.Y.S.2d 192). Respondents also argue that even persons of "sub-normal intelligence" may waive constitutional and statutory rights (People v. Corona, 570 N.Y.S.2d 105), as may students (Caso v. N.Y.S. Public High School Association, Inc., 434 N.Y.S.2d 60) and minors (People v. Smith, 635 N.Y.S.2d 824; People v. Stephen J.B., 298 N.Y.S.2d 489).
I have reviewed the relevant law and agree that a minor's due process rights can be waived, assuming that the standard for a voluntary, knowing and intelligent waiver of a legal right has been met. In the case Coplin v. Conejo Valley Unified School District, 903 F.Supp. 1377 [U.S.D.C. C.D.C.A. 1995], for example, the court upheld a student’s right to waive a due process hearing by signing a "Consent to Discipline Form" after consultation with the student’s attorney. That form clearly stated that the student would be entitled to a hearing, and he was giving up that right (Coplin, supra at 1211]. The court concluded that the student’s parents "knowingly and intelligently waived the right to a pre-expulsion hearing, and consented to the discipline imposed."
E. THE WAIVER LETTER
The "voluntary, knowing and intelligent" standard requires that the person waiving the right must be informed of the right as well as the consequences of waiving the right, and that the waiver must be intelligent and voluntary. The record in this case indicates that the standard waiver letter is signed by both the student and parent, and describes the right to be waived in English (or Spanish, if appropriate).
However, there are other inadequacies in the process which require examination. Petitioner amicus argues that the waiver letter itself misstates the law. The suspension letter issued by respondents states:
State law provides that if you disagree with the charge(s), you and your child can have a hearing to contest them.
In contrast, Education Law "3214 states that:
No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil, shall have had an opportunity for a fair hearing.
Petitioners argue, and petitioner amicus specifically argues, that the suspension letter does not accurately describe the statute, i.e., the parent does not have to "disagree" with the charges to be entitled to a hearing. Therefore, petitioners contend, this portion of the letter should be clarified to state that the parent is entitled to a hearing, and does not have to disagree with the charges to be able to request a hearing. I agree with petitioners that the letter does not accurately state that a pupil and parent have a right to a hearing for suspensions in excess of five days, regardless of agreement or disagreement with the charges. Respondents must clarify its waiver letter to state that provision of law clearly and concisely. Without accurate information, students cannot make intelligent waivers.
Petitioner amicus also notes that the pupil’s right to counsel is not clearly explained to students and their parents. Respondents’ suspension letter states:
You would have the right to be represented by an attorney…
Education Law "3214 states that:
[a] pupil shall have the right of representation by counsel…
Petitioners argue that the pupil, not the parent, has the right to be represented by counsel, and furthermore that respondents’ interpretation of the statute in using the term "attorney" is inaccurate since many district students are represented by lay advocates. I agree with petitioners that the use of the word "attorney" rather than "counsel" gives students and their parents the impression that they have the right to an attorney but not a lay advocate. Therefore, I find that the letter should be modified to state that the person has a specific right to be represented by counsel, not "would" have a right, which implies a condition. If there is reference to an "attorney", that reference should clarify that a student may alternatively be represented by a lay advocate.
Petitioners also argue that the suspension letter misstates the role of the hearing officer and the nature of the hearing officer’s recommendation. It states:
The hearing officer would then advise the Superintendent whether he thinks the charge(s) are true or not. If the hearing officer thinks the charge(s) are true, he would also advise the Superintendent how long the suspension should be and where your child should be educated during the time of suspension.
The statute provides:
The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent.
Petitioners argue that the letter misstates the law since it does not explain that the hearing officer may recommend a measure of discipline other than suspension, and also implies that in every case the pupil will be educated elsewhere when students over the compulsory attendance age might not receive any alternative education since it is not required under law. I agree with petitioners that the waiver letter must state more succinctly that the hearing officer makes recommendations to the superintendent. The letter must also mirror the statute more closely and remove the element of subjectivity currently present as it pertains to what the hearing officer "thinks." The letter should also advise that the student will not be entitled to alternative education if he/she is over 16 years of age (or over 17 in New York City).
Petitioners also object to the timing of the letter and the language in it that indicates that a hearing will not be scheduled until respondents receive the "request for hearing form". Under the current system, these letters are not sent immediately upon suspension, and since the parent may not return the form expeditiously, the hearing is not timely, and in fact can take place weeks after the student has been removed from school. In these appeals, the hearing did not take place within five days of the suspensions and the student remained out of school until the hearing was scheduled. The law in this regard is clear. Education Law "3214(3)(c) "does not require that the actual disciplinary hearing be held within five school days from the first day of the suspension" only that "the suspension may not continue beyond the five school days unless and until the student has been afforded an opportunity for a hearing and a determination adverse to the interests of that student has been made." (Ross v. Disare, supra; MacDonald v. Tompkins, 67 Misc.2d 338, 323 N.Y.S.2d 1002; Matter of Corbett; 12 Ed Dept Rep 184; Matter of Manson, 11 id. 48). Thus, if respondents hold the hearing beyond the five-day time frame required by law, they must admit the student to school pending the hearing. The record indicates that the current waiver system requires a student who has chosen to exercise his or her right to a fair hearing to remain out of school until that hearing is held. This is in violation of law. I therefore direct respondents to admit to school students who choose to exercise their right to a hearing at the conclusion of the fifth day of their initial suspension, unless a hearing sustaining a longer period of suspension is held within the initial five-day suspension period or unless an adjournment is requested by the student or parent. Since respondents argue that its current waiver system has streamlined its student discipline system and made it more efficient, compliance with this timeline should present no difficulties. If it does, the burden of those scheduling difficulties cannot be borne by the student.
Petitioners also raise the fact that respondents do not permit parents to request a hearing over the telephone and object to the language in respondents’ letter that states that if the hearing request form is not returned, the district will interpret the lack of response as a waiver of the right to a hearing. As stated above, it is critical that the waiver be knowing, intelligent and voluntary. Respondents’ interpretation of a parent’s failure to respond to the district's hearing request form as a waiver of their child's right to due process is simply not consistent with these requirements. To preserve the due process rights of students, absent a binding and written waiver, respondents must schedule a superintendent’s hearing and notify both parent and student of that hearing. Respondents may not interpret a parent’s failure to respond as an affirmative, voluntary waiver of Education Law "3214 due process rights. Therefore, respondents are directed to amend the district's policy to require the scheduling of a hearing in the event a parent does not respond to the hearing request form. The district may not assume that a lack of response indicates a waiver of any right.
Because I agree with petitioners’ assessment that the district’s suspension letter contains several major misstatements of the law, I sustain their appeal on those issues as discussed herein and order respondents to clarify the suspension letter consistent with Education Law "3214 and the above discussion to ensure voluntary, knowing and intelligent waivers.
F. ALTERNATIVE INSTRUCTION
Petitioners allege that respondents’ provision of alternative education was untimely and inadequate. Education Law "3214(3) provides:
e. Procedure after suspension. Where a pupil has been suspended as insubordinate or disorderly and said pupil is of compulsory attendance age, immediate steps shall be taken for his attendance upon instruction elsewhere…
Respondents argue that this statute does not require alternative instruction in all cases, and that alternative instruction is not required when a student is beyond compulsory school age. Respondents also argue that the plain meaning of Education Law "3214(3)(e) only requires that the district provide alternative instruction to students who have been merely insubordinate or disorderly, and not to students who are suspended because their "conduct otherwise endangers the safety, morals, health or welfare of others." This novel interpretation is wholly without merit. Numerous decisions of the Commissioner of Education have held that alternative instruction is required for all students who are of compulsory school age Turner v. Kowalski, 49 AD2d 943; 374 NYS2d 133; Appeal of Bridges, 34 Ed Dept Rep 232; Appeal of Warner, 32 id. 533; Matter of Kulik, 21 id. 567; Matter of Klug, 20 id. 134). Severity of the conduct involved is irrelevant, so long as that student is of compulsory school age.
The record in this case indicates that respondents have provided for alternative education. However, in the first appeal, petitioner McMahon argues that alternative education was not provided in a timely matter to LaVerne Bloss. In the second appeal, petitioners Mosely and Summersett also contend that respondents’ provision of alternative education is inadequate and is not substantially equivalent to the regular classroom program.
My review of the record indicates that respondents failed to provide alternative education in a timely manner. LaVerne Bloss was not provided with alternative instruction until the ninth day of his suspension; Justin Summersett was not provided with alternative instruction until the fourth day of his suspension; and Corinne Mosely did not receive alternative instruction until the seventh day of her suspension. In Matter of Kulik, supra, the Commissioner noted that:
Education Law "3214(3)(e) provides that where a student has been suspended as insubordinate or disorderly and the student is of compulsory attendance age, immediate steps shall be taken for attendance upon instruction elsewhere. The term ‘immediate’ does not mean instantaneously, but it does mean that a school district should act reasonably promptly, with due regard for the nature and circumstances of the particular case (citing Turner v. Kowalski, supra).
In each student's case, "reasonable promptness" was clearly lacking.
G. PERMISSIBLE PENALTIES UNDER EDUCATION LAW "3214
The record in this case indicates on May 9, 1996, Justin Summersett was notified by the superintendent that he had adopted the findings of the hearing officer that Justin assaulted and injured a student on April 1, 1996. Justin had been assigned to an alternative educational placement, and the superintendent’s letter informed him that he would remain in that placement for the rest of the school year. The superintendent’s letter also stated that "[y]our child must participate in the District’s Intensive Intervention Counseling Program before returning to school." The letter further states that the "counseling program will teach personal problem solving and conflict resolution skills, so that upon the student’s return to school, a student will know how to avoid further disciplinary problems and suspensions."
It is well settled that a school district may not impose community service or alcohol/drug abuse assessments as penalties under Education Law "3214 (Appeal of Eddy, 36 Ed Dept Rep 359; Appeal of Alexander, 36 id. 160). The only permissible penalty under Education Law "3214 is suspension from school attendance. Therefore, I find respondents’ imposition of the intensive intervention program as a penalty improper under Education Law "3214. Furthermore, a school district cannot condition a student’s return to school on participation in counseling services (Appeal of Cynthia and Robert W. and Appeal of Melani and James H., Decision No. 13899, dated March 30, 1998; Appeal of Alexander, supra; Appeal of Holliday, 29 Ed Dept Rep 373). A review of the record shows that respondent imposed that condition on Justin Summersett. Accordingly, any reference to improper penalties must be removed from the students’ disciplinary records.
Moreover, to comply with law, respondents' waiver system must only allow the imposition of penalties that are legally permissible under "3214. Thus, if a student knowingly and intelligently waives his right to a hearing, the district can impose upon him only those penalties it could legally impose under "3214 had a hearing actually been held. Respondents are directed to identify the possible penalties in their waiver letter to ensure that parents and students are making a knowing and intelligent waiver.
Although petitioners seek expungement of the student records at issue in this appeal, I find that based on the decision herein, there is no basis upon which I may expunge the students’ records, with the exception of the imposition of improper penalties. The students in these cases made timely requests for hearings under Education Law "3214, were found guilty of the charges brought against them, and have served the suspensions imposed. Although this decision does find that respondents’ waiver system requires substantial modification to comply with law, this non-compliance did not compromise petitioners' rights. Therefore, expungement is not warranted.
Respondents’ waiver system is a novel approach to the problem of the increasing number of student disciplines confronting many large school districts. While I conclude that a waiver system is permissible under Education Law "3214 with certain safeguards in place, I caution respondents and other school districts who may use such a system to fully inform students and parents, or persons in parental relation to the student, of their clear right to a hearing on any student suspensions of five days or more. As the United States Supreme Court decision in Goss, supra, noted, "a student’s legitimate entitlement to a public education [is] a property interest protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that clause." The removal of a student from the school setting should be made only with full acknowledgement of that student’s right to a public education and only in those situations where the student’s conduct is clearly disruptive and impedes a school’s progress in achieving its academic goals. Respondents’ waiver system, if modified, will afford the student, parent or person in parental relation who is adversely affected, the opportunity to adequately respond, explain and defend the charges against them by requesting a hearing. In those instances where students, their parent or person in parental relation choose to accept the findings and proposed disposition of the district, they will do so voluntarily, knowingly and intelligently. Thus, I find this system meets the fundamental requirements of due process.
Based on the foregoing disposition, it is unnecessary to address petitioners’ remaining claims.
THE APPEAL IS SUSTAINED IN PART.
IT IS ORDERED that respondent expunge from the disciplinary records of Justin S. all references to the district’s intensive intervention program imposed in May 1996;
IT IS FURTHER ORDERED that respondents modify the district’s waiver policy and letter to comply with Education Law "3214 consistent with this decision, offer alternative education in a timely manner, and provide suspension hearings in a timely manner, within 30 days of the date of this decision.
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