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Decision No. 14,029

Appeal of LEE D., on behalf of her son, from action of the Board of Education of the Manhasset Union Free School District, Maria Petraglia, as super-intendent of schools and Michael Keany, as principal, regarding discipline.

Decision No. 14,029

(November 23, 1998)

Rains & Pogrebin, P.C., attorneys for respondent, Richard K. Zuckerman, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the disciplinary measures imposed upon her son by the Board of Education of the Manhasset Union Free School District ("respondent board") and seeks expungement of her son's records. The appeal must be dismissed.

In March 1996, petitioner's son participated in a drama exchange bus trip to Quebec, Canada. After the students returned, respondent's principal was informed that some students had been drinking alcohol on the bus trip. The principal and associate principal conducted an investigation, questioning each of the students who participated in the drama exchange.

When questioned during the investigation, petitioner's son admitted that he drank alcohol on the bus trip. Respondent's student discipline policy indicates that, for a first offense, possession or use of alcoholic beverages on school sponsored activities warrants a five day out of school suspension. The principal suspended petitioner's son for five days for his misconduct. He also suspended him from all school social activities for the remainder of the year. On March 19, petitioner met with the principal and assistant principal to discuss the incident, her son's admission and the suspensions imposed. Petitioner appealed to respondent superintendent of schools, who upheld the principal's decision.

Thereafter, petitioner appealed to respondent board, and a hearing was held in executive session to consider the appeal. Petitioner was represented at the hearing by counsel. She and her son were provided an opportunity to present to respondent board their position and objections regarding the discipline imposed. After deliberating over the evidence presented, respondent board upheld the five-day suspension but, in recognition of petitioner's son's honesty in admitting his misconduct, rescinded his suspension from school social activities. This appeal ensued.

Petitioner challenges the five-day suspension on procedural grounds, contends the measure of discipline imposed was excessive and seeks expungement of her son's records. Petitioner claims that she was provided insufficient notice of the date of the board meeting at which respondent was to review her son's suspension, and that she was not provided with a transcript of the associate principal's investigation of the incident wherein her son was questioned. Petitioner claims that respondent's associate principal and principal intimidated her son during the investigation. She asserts that, although her son did take a drink of alcohol, he was not aware at the time that the drink he was offered was, in fact, alcohol. Thus, she claims the penalty imposed upon her son is excessive under the circumstances, and that respondent principal abused his discretion by not imposing a lesser penalty. Finally, petitioner contends that respondents failed to provide her son with adequate alternative education during the five-day period of suspension.

Respondents Petraglia and Keany argue that they were not properly served with the petition and, therefore, the appeal must be dismissed as against them. On the merits, respondents contend that the disciplinary action was in all respects proper and that the five-day suspension is an appropriate penalty.

I will first address the procedural defense raised by respondents Petraglia and Keany. Section 275.8(a) of the Regulations of the Commissioner of Education requires that each named respondent in an appeal be served personally with a copy of the verified petition. The affidavits of service submitted by petitioner indicate that copies of the petition were served by mail on respondents Petraglia and Keany. Because petitioner failed to personally serve respondents Petraglia and Keany, as required by regulation, the appeal must be dismissed as to each of them.

I must also address an additional procedural matter. I note that petitioner's reply, respondents' sur-reply and petitioner's response to the sur-reply include additional claims not raised in the petition. Specifically, petitioner raises issues relating to the publication of a newspaper article and relating to her son's academic placement in a subsequent English course offered in respondents' district. The purpose of a reply is to respond to procedural defenses or new material contained in an answer, not to buttress allegations contained in a petition or belatedly add assertions that should have been included in the petition (Appeal of Pasquale, 36 Ed Dept Rep 290). Accordingly, I have not considered that portion of the reply and subsequent submissions that contain the new allegations and exhibits that were not originally contained in the petition.

With respect to the manner in which discipline was imposed upon her son, petitioner claims several procedural errors occurred. First, she contends that she was not provided a transcript of respondents' investigation of the incident. Specifically, petitioner complains that respondents failed to provide her with a transcript of the associate principal's questioning of her son. There is no legal requirement that a transcript of an investigation be made or provided to a parent. To the extent that petitioner relies on the provisions of Education Law "3214(3)(c), such reliance is misplaced. The requirement that a record be maintained pertains only to disciplinary hearings held prior to suspending a student for more than five days (Education Law "3214[3][c]). There is no requirement in law or regulation that a record of proceedings be made for suspensions of five days or less.

Petitioner makes a similar argument with respect to the notice provided to her prior to the meeting at which respondent board of education reviewed the discipline imposed upon her son. On March 27, respondent Petraglia notified petitioner that she was upholding the suspension imposed by respondent Keany. Respondent Petraglia further informed petitioner that the board of education would review the matter at its meeting on the evening of March 28. Petitioner characterizes the board review as a "fair hearing" within the meaning of Education Law "3214(3), and claims that she was given insufficient notice of the meeting to enable her to prepare an adequate defense. Education Law "3214(3) contains a specific provision requiring that reasonable notice be given with respect to the formal hearing required prior to suspension of a student for more than five days. That provision is not applicable to subsequent review by a board of education. The review by a board of education concerning a disciplinary matter is not a hearing (Appeal of Goldberg, 36 Ed Dept Rep 470). Consequently, the statutory notice provisions relied on by petitioner do not apply in this instance.

In any event, the record indicates that petitioner, her husband and son attended the board of education meeting, with representation by counsel. Petitioner and her son were given an opportunity to present to respondent board their contentions and objections to the discipline imposed by respondent Petraglia. At no time did petitioner's counsel request an adjournment of the board meeting. Respondent board heard petitioner's arguments, reviewed the record in executive session and, after due deliberation, upheld the five-day suspension, but nullified suspension of petitioner's son from extra-curricular activities. Based on the record before me, I am unable to conclude that the notice provided petitioner denied her a fair opportunity to present her objections to respondent board for consideration. Although petitioner cites the inconvenience caused to her husband due to the one day notice, petitioner has not indicated how her presentation before respondent would have differed had she been afforded greater notice. Indeed, as noted, petitioner prevailed before respondent board, in part, in reducing the penalty imposed upon her son. Consequently, on these facts, I cannot conclude that the notice provided petitioner was insufficient.

With respect to the substantive issues raised by petitioner, in an appeal before the Commissioner of Education, petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Robert and Barbara D., 38 Ed Dept Rep 18; Appeal of Lupiani, 36 id. 355). Here, petitioner does not contest that her son admitted drinking alcohol on the school bus trip in violation of the school disciplinary policy. However, she challenges the admission on two grounds. Petitioner asserts that respondent's administrators employed intimidation tactics during their investigation of the incident. I do not find that assertion supported in the record. Petitioner states that, during the investigation, her son had to wait for some time outside the principal's office and observed other students coming out of the office visibly upset. Although such observations might have been upsetting to petitioner's son, I do not find them evidence of intimidation on the part of respondent's administrators.

Secondly, petitioner claims her son was unaware that the container of liquid he was offered contained alcohol when he drank it and, therefore, he should not be disciplined for drinking alcohol on the bus trip. It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by the facts in the record (Appeal of L.M., 36 Ed Dept Rep 56; Appeal of Bowen, 35 id. 136). Petitioner and her son raised this claim before respondent Petraglia and again before respondent board. Indeed, petitioner's son appeared before respondent board personally to make his statement. After hearing petitioner's arguments and her son's statements, respondent's associate principal, principal, superintendent and respondent board each determined that the student took a drink of alcohol of his own volition and did not credit his contention that he was unaware of the contents of the bottle when he drank. In an appeal before the Commissioner, petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Robert D., 38 Ed Dept Rep 18; Appeal of Lupiani, 36 id. 355). Petitioner offers no persuasive facts on which to substitute my judgment for that of respondent board on the issue of credibility.

Petitioner also claims that, because the infraction was her son’s first offense and because his misconduct was minor relative to other students on the trip, a lesser penalty should have been imposed. She contends, therefore, that respondent's principal improperly refused to exercise his discretion in imposing a five-day suspension. The record indicates that both the superintendent and respondent board reviewed and agreed with the suspension imposed, and that it comports with respondent's discipline policy. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Alexander, 36 Ed Dept Rep 160; Appeal of Durkee, 20 id. 94). The test to be applied in reviewing the propriety of a particular penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Alexander, supra; Appeal of Forestiero, 34 Ed Dept Rep 592; Appeal of Homick, supra. Where a penalty is excessive, the Commissioner will substitute his judgment for that of the board of education (Appeal of Tietje, 34 Ed Dept Rep 567; Appeal of Stewart, 34 id. 193). Based on the record, I cannot conclude that a five-day suspension for use of alcohol on a school trip is so excessive as to warrant the substitution of my judgment for that of respondent board (see, Appeal of Robert D., 38 Ed Dept Rep 18). Moreover, respondent board did exercise discretion when it rescinded the imposition of its principal's suspension of petitioner's son from school social activities.

Finally, petitioner argues that respondent board failed to provide her son with adequate alternative education during the five-day period of suspension. When a student of compulsory school age is suspended pursuant to Education Law "3214, a school district must act reasonably promptly to provide alternative instruction regardless of the length of suspension (Appeal of Bridges, 34 Ed Dept Rep 232). The record indicates that, by the second day of suspension, respondent offered petitioner's son alternative instruction in the subjects of mathematics, chemistry and English, but failed to offer any instruction in history and Spanish. I find respondent complied with the requirement to provide alternative instruction by offering this student mathematics, English and chemistry in a reasonably prompt timeframe. However, respondent failed to comply with the alternative instruction requirement with respect to history and Spanish. Although this does not provide a basis to nullify the suspension and expunge the student's record, respondent board is admonished to fully comply in the future with the dictates of Education Law "3214 regarding the provision of alternative instruction in the imposition of disciplinary sanctions.

After careful review of the record before me, I find that petitioner's son engaged in the misconduct and the penalty imposed is appropriate therefor. I have reviewed petitioner's other claims and find them without merit.