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Decision No. 14,182

Appeal of AMARA S., on behalf of S. T., from action of the Board of Education of the Freeport Union Free School District regarding a student suspension.

Decision No. 14,182

(July 30, 1999)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son and requests that the Board of Education of the Freeport Union Free School District ("respondent") be directed to expunge the suspension from her son’s record. The appeal must be dismissed.

Petitioner is the mother of S.T., a student at John W. Dodd Jr. High School. S.T. was suspended for five days, October 17 to October 23, 1997 for "possession of what was represented as a controlled substance in school." On October 16, 1997, Assistant Principal Micucci ("Micucci") received a report that students were seen smoking marijuana on the way home from school the previous day. Based on this information, he and Assistant Principal McCabe ("McCabe") questioned the students they had been told were involved. One student, S.E., told McCabe that she brought two bags of what she thought was marijuana to school, and had given one bag to S.T.

Based on S.E.’s statement, Micucci sought out petitioner’s son, did a "pat down" search of him, and questioned him. No drugs were found. However, after questioning, McCabe and Micucci obtained a statement from S. T.:

S.E. and I were sitting doing our work at the technology table on 10-15-97. She pulled out two bags of something she said she thought was weed and said do you want one. I said yes. After school I asked my friend what it was he said dirt and I threw the bag.

McCabe telephoned petitioner on the 16th and told her that S. T. would probably be suspended for five days. By letter dated October 16, 1997 petitioner was informed that S. T. was suspended for five days beginning October 17, 1997 and ending October 23, 1997 for the "possession of a controlled substance in school." The letter further advised petitioner that an informal conference would be held on October 23. Petitioner requested that the conference be rescheduled to the 24th .

On October 17 petitioner appeared at the school with her son and met with McCabe and Principal Brown. At that time, S. T. did not dispute his prior admission. On or about October 22, 1997, the suspension letter was amended to charge S. T. with "possession of what was represented as a controlled substance in school." Petitioner met with McCabe again on October 24 to discuss the incident.

Petitioner requests that respondent expunge the suspension from her son’s record and reimburse her the cost of hiring a tutor for her son while he was home on suspension. Petitioner contends that she and her son were denied due process. She claims she should have been notified prior to her son being searched by school officials. She contends that no one told her she had a right to confront her son’s accusers at the informal conference. She also alleges that she was told by Principal Brown that she would not be allowed to question any complaining witnesses, nor would she be advised who the other participants were. Additionally, she claims Brown told her that nothing she said would cause him to withdraw the suspension. She also maintains that she was never informed of her right to appeal this decision to the board of education or to the Commissioner.

In addition to alleged due process violations, petitioner maintains that respondent had no substantive reason to suspend S. T. According to S. T.'s statement, he did not know what was given to him by his classmate, Micucci’s search did not reveal any controlled substance on her son, and no one knows what was in the bag he discarded. She asserts that if the contents of the bag were unknown, S.T. cannot be "charged" with possessing a controlled substance.

Respondent maintains petitioner was afforded due process. Petitioner was sent two letters informing her of the reason for her son’s suspension (albeit one was a revised statement) which scheduled a date for an informal conference. The first date of the conference was changed at petitioner’s request. Respondent further claims that petitioner's unscheduled October 17, 1997, meeting with the principal and assistant principal, constituted her "informal conference." Respondent contends that the complaining witness against her son was McCabe, who was present at and participated in, the impromptu informal conference. Thus, respondent argues petitioner had an opportunity to confront her son’s "accuser."

Respondent claims that the revised suspension notice was issued because the lab report on the marijuana, which was taken from the other student allegedly involved, had not yet been completed. It further maintains that the decision to suspend S.T. was based on competent and substantial evidence that he participated in objectionable conduct. Additionally, respondent alleges that the petition should be dismissed for failure to exhaust administrative remedies or, in the alternative, as untimely.

I will first address the procedural issues raised. Respondent has alleged that petitioner has failed to exhaust her administrative remedies because its regulations provide that a parent "may appeal [the superintendent/building principal's] decision to the Board." Initially, I must address whether Education Law "3214 requires exhaustion for a suspension of five days or less. I note that there are conflicting decisions on this issue. In Appeal of Catherine B., 37 Ed Dept Rep 34, Decision No. 13,797, I held that Education Law "3214 did not require a suspension of less than five days to be appealed to the board of education. However, in Appeal of Alan G., 38 Ed Dept Rep 46, Decision No. 13,978, I held that a two-day suspension was subject to the exhaustion requirement of Education Law "3214(3)(e). Upon careful review of these cases and "3214, I am specifically overruling the Alan G. decision. The language in "3214(3)(c) is plain and unambiguous, in that it mandates exhaustion for suspensions in excess of five days. However, there is no explicit language in "3214, which requires exhaustion for suspensions of five days or less. The Legislature could have mandated exhaustion for suspensions of five days or less as it did for suspensions in excess of five days. The fact that it chose not to, under the rules of statutory construction (Statutes "74) requires me to interpret this omission as intentional. Thus, while it may seem anomalous to require exhaustion for suspensions in excess of five days, but not less than five, I am constrained by the language of "3214 to find no express exhaustion requirement.

There is, however, nothing in "3214 which prevents a school district from promulgating a policy that requires exhaustion. Education Law "310 allows an appeal to the Commissioner from, "any … official act or decision of any officer, school authorities, or meetings concerning any other matter under [the Education Law]." Implicit in this language is the requirement that the "act or decision" to be challenged be the final determination by the school district. Indeed, finality is essential to avoid multi-level reviews and duplicative efforts at the State level. Thus, districts may impose, by properly codified rules, exhaustion requirements that are reasonable and consistent with the right of complainants under "310 to have disputes ultimately reviewed by the Commissioner.

In this case, respondent has a regulation which allows for an appeal to the board of education of a suspension of five days or less. However, I find that respondent's regulation is permissive, not mandatory since it provides that a parent "may appeal" the suspension to the board. Therefore, I find that there was no board of education rule in effect which required exhaustion, and I will not dismiss the appeal on that basis.

The appeal, however, must be dismissed as untimely. S. T.’s suspension ended on October 23, 1997, petitioner had an informal conference with the building principal on October 24, yet this appeal was not commenced until January 5, 1998. An appeal to the Commissioner must be commenced within 30 days of the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The only reason offered by petitioner as to why she did not timely file an appeal was that she was unaware that this was an option. Except in unusual circumstances, ignorance of the appeal process does not constitute "good cause" for delay (Appeal of Holzer, et al., 37 Ed Dept Rep 549, Decision No. 13,924; Appeal of Diane L., 37 id. 443, Decision No. 13,900; Appeal of A.B., 36 id. 155, Decision No. 13,687). I find no evidence of unusual circumstances in this case. Accordingly, the appeal must be dismissed as untimely.

Although the appeal is dismissed as procedurally defective, I am compelled to comment on respondent's actions. The first notice sent out to petitioner was defective in that it did not inform her that she had a right to request an immediate informal conference with the principal as provided for in 8 NYCRR "100.2(l)(4). The date for the informal conference offered to petitioner was the last day of her son's suspension. Respondent then sent out a second notice on the third day of S. T.'s suspension, amending the charge. Petitioner did not receive notice of the amended charge until the third day of the suspension, which does not constitute "immediate notice." Additionally, the second notice was also deficient for failure to inform petitioner of her right to an immediate informal conference.

Finally, petitioner claims she hired a tutor for her son while he was suspended. Respondent denies this allegation but nothing in the record indicates petitioner’s son was offered 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 Lee D., 38 Ed Dept Rep 262, Decision No.14,029; Appeal of Bridges, 34 id. 232, Decision No. 13,291). It appears from the record before me that this was not done.

In sum, while I have dismissed this appeal, I admonish respondent for its failure to fully comply with Education Law "3214 and 8 NYCRR "100.2(l)(4). Respondent should review and revise its disciplinary procedures to bring them into compliance with the statute and regulation.