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Decision No. 14,039

Appeal of PHYLLIS and MARC B., on behalf of their daughter, from action of the Board of Education of the Manhasset Union Free School District, Maria Petraglia, as superintendent of schools and Michael Keany, as principal, regarding discipline.

Decision No. 14,039

(November 25, 1998)

Matturo & Hirsch, attorneys for petitioners, Susan Fagen Britt, Esq., of counsel

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

MILLS, Commissioner.--Petitioners challenge the disciplinary measures imposed upon their daughter by the Board of Education of the Manhasset Union Free School District ("respondent board") and seek expungement of their daughter's records. The appeal must be dismissed.

In March 1996, petitioners' daughter participated in a drama exchange bus trip to Quebec, Canada. After the students returned, respondent 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, petitioners' daughter admitted that she drank alcohol on the bus trip. Respondents' 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 petitioners' daughter for five days for her misconduct. He also suspended her from all school social activities for the remainder of the year. On March 19, petitioners met with the principal and associate principal to discuss the incident and the suspensions imposed. Petitioners appealed to respondent superintendent of schools, who upheld the principal's decision.

Thereafter, petitioners appealed to respondent board, and a hearing was held in executive session to consider the appeal. Petitioners were represented at the hearing by counsel. Petitioners were provided an opportunity to present to respondent board their position and objections regarding the discipline imposed. Their daughter did not attend the board meeting. After deliberating over the evidence presented, respondent board upheld the five-day suspension but, in recognition of petitioners' daughter's honesty in admitting her misconduct, rescinded her suspension from school social activities. This appeal ensued.

Petitioners challenge the five-day suspension on procedural grounds, contest respondent board's finding that their daughter was guilty of violating the district's disciplinary policy and seek expungement of their daughter's records. Petitioners claim that their daughter was not permitted to call her parent prior to questioning by respondent Keany. They also claim they were denied their right to question complaining witnesses in violation of the requirements of Education Law "3214. Petitioners claim that, during the investigation, respondent's associate principal and principal coerced their daughter into admitting she drank alcohol. They assert that, although their daughter did take a drink of alcohol, she was not aware at the time that the drink he was offered was, in fact, alcohol. Thus, petitioners claim that, absent such knowledge, their daughter can not be guilty of violating the district's disciplinary policy.

Respondents Petraglia and Keany argue that petitioners are appealing from a determination of respondent board made after reviewing their respective decisions. They contend that, because it is the board's decision which is the subject of this appeal, the appeal is not properly brought as against them and must be dismissed. 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. Petitioners sought review by respondent board of the respective determinations of respondents Keany and Petraglia to suspend their daughter. As a result of petitioners' request, respondent board met and, after hearing petitioners' arguments, reviewed the record before it and upheld the discipline imposed. In this appeal, petitioners seek reversal of respondent board's determination. They seek no relief against the individual respondents. Because petitioners set forth no claims for relief against respondents Keany and Petraglia, the appeal is dismissed as against them.

With respect to the manner in which discipline was imposed upon their daughter, petitioners claim several procedural errors occurred. First, they contend that their daughter was not provided an opportunity to call her mother prior to respondent Keany's investigation of the incident. There is no legal requirement that a parent be contacted or present during an administrative investigation of an incident involving student conduct. Education Law "3214 requires only that, for suspensions of five days or less, parents be provided an opportunity for an informal conference with the principal. The record indicates that petitioners were afford such an opportunity. Petitioners have the burden of establishing an entitlement to the relief sought. Thus, petitioners provide no legal basis in support of their claim that their daughter was denied any legal right during the investigation of the incident.

Petitioners argue that respondents did not afford their daughter due process because petitioners were not permitted to question students involved in the incident. Petitioners claim that at their informal conference with respondent Keany, the principal indicated that, during the investigation in which students were questioned, their daughter's name "came up". Petitioners allege that respondent Keany's failure to permit them to question the students constitutes a violation of due process that warrants reversal of the disciplinary action.

Education Law "3214[3][d] provides:

In the case of a suspension by the principal pursuant to paragraph b of this subdivision, 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.

In this case, the incident leading to the student's suspension was investigated at the school district level, as a result of information received from staff at the school in Quebec. Respondent Keany interviewed petitioner's daughter and, based upon that interview imposed the five-day suspension. There is no indication in the record that his decision resulted from accounts by other student witnesses. Instead, the record indicates that he made his determination based upon his assessment of petitioner's daughter's statements. Petitioners were provided an opportunity to discuss the incident, their daughter's statements and the discipline imposed with the associate principal and principal, who in this case constituted the complaining witness. Therefore, in this instance, respondents complied with the requirements of Education Law "3214(3)(d) by holding an informal conference between petitioners and the principal (Appeal of Blish, 32 Ed Dept Rep 171). According to the record, petitioners' daughter had an opportunity to explain her version of the facts to the principal. Accordingly, I find petitioners' claim that respondent violated their daughter's due process rights without merit.

I note that petitioners' claim that during their meeting with respondent Petraglia to review respondent Keany's decision, respondent Petraglia stated that district policy prohibits respondents from ever making students available for questioning in a disciplinary proceeding. If true, such an absolute policy would violate law. However, all respondents deny that the respondent board has adopted such a policy. In an appeal before the Commissioner, petitioners have the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of Robert and Barbara D., 38 Ed Dept Rep 18; Appeal of Lupiani, 36 id. 155). Petitioners have not submitted a copy of the alleged policy nor offer any other proof. Consequently, I am unable to sustain their claim.

With respect to the substantive issues raised, petitioners do not contest that their daughter admitted drinking alcohol on the school bus trip in violation of the school disciplinary policy. However, they challenge the admission on two grounds. Petitioners assert that, during respondent Keany's investigation of the incident, their daughter was coerced into making the admission. Specifically, they allege that respondent Keany told their daughter that, if she told the truth, he would "go easy on her." Petitioners submit an affidavit from their daughter in which she supports that allegation. However, respondent Keany submits an affidavit in which he denies making such a statement. As noted, 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., supra; Appeal of Lupiani, supra). In view of the fact that the evidence is in equipoise, I find petitioners have failed to carry their burden and failed to establish their claim.

Secondly, petitioners claim their daughter was unaware that the container of liquid she was offered contained alcohol when she drank it and, therefore, she 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). Petitioners raised this claim before respondent Petraglia and again before respondent board. After considering petitioners' arguments and their daughter's statements, respondent's associate principal, principal, and superintendent each determined that the student took a drink of alcohol on her own volition and did not credit her contention that she did not know what was in the bottle when she drank.

Respondent board reviewed the determination of its superintendent and the basis therefor. Petitioners were represented by counsel at the board meeting and presented their position and objections. The record indicates that their daughter did not appear at the meeting to refute the basis for the disciplinary action. Petitioners claim that their daughter did not appear because they did not know that respondents Keany and Petraglia would testify that their daughter admitted to taking a drink of alcohol. However, this claim is belied by the affidavits submitted by petitioners in which both refer to the admission in connection with their meeting with respondent Petraglia. According to their affidavits, at the meeting with respondent Petraglia – which preceded respondent board's review – both petitioners contested respondent Keany's statement that their daughter admitted to drinking alcohol. Consequently, petitioners were aware of respondents Keany and Petraglia's asserted position prior to their meeting with respondent board and could have brought their daughter to refute their assertions. Thus, petitioner offers no persuasive facts on which to substitute my judgment for that of respondent board on the issue of their daughter's credibility and the imposition of the discipline.