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Decision No. 14,278

Appeal of a Student with a Disability by his parents, from action of the Board of Education of the Kenmore-Town of Tonawanda Union Free School District regarding student discipline.

Decision No. 14,278

(December 21, 1999)

Neighborhood Legal Services, Inc., attorneys for petitioner, Ronald M. Hager, Esq., of counsel

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Kenmore-Town of Tonawanda Union Free School District ("respondent") to suspend their son. The appeal must be dismissed.

Petitioners' son is seventeen years old and resides with his parents within the Kenmore-Town of Tonawanda Union Free School District. On September 17, 1998, petitioners' son was declassified by respondent's Committee on Special Education (CSE) at the request of his mother so that he could attend the Alternative Learning Program (ALP) operated by the Erie I Board of Cooperative Educational Services (BOCES). He had previously been classified as learning disabled. On October 14, 1998, petitioner's son allegedly used marijuana while on the school bus traveling to his program at ALP. As a result, he was suspended for five days by the Erie I BOCES ALP. The five-day suspension included October 15, 16, 19 20 and 21, 1998. Respondent notified petitioners on October 19, 1998 that it scheduled a superintendent's hearing for October 22 to determine whether to suspend petitioners' son from school beyond five days for "use of illegal drug on school property – the school bus traveling to the ALP 9-12 program."

On October 22 and again on October 27, petitioners delivered letters to respondent's offices requesting adjournments to obtain legal representation. The hearing was ultimately held on November 3 at which petitioners' son was represented by a paralegal.

Five witnesses testified at the four-hour hearing. An ALP teacher testified that he overheard petitioners' son tell other students that "they were smoking up on the bus" and took that to mean students were smoking marijuana on the Kenmore-Town of Tonawanda school bus enroute to the ALP. The teacher reported the incident to the principal, who instituted a "lock-down" that led to private interviews with students. When interviewed, petitioners' son named the student who brought the marijuana and admitted taking a "hit" but getting "nothing" and throwing it out the school bus window. A contract required by ALP and signed by petitioners and their son agreeing to a ban on the use of illegal substances, was entered into evidence at the hearing. The principal of ALP testified that he explained the contract fully to every parent and child, emphasizing the prohibition on possessing drugs.

The Assistant Principal of Kenmore East High School testified that she investigated the report from ALP that petitioner's son was involved in marijuana use on the bus, an offense under respondent's "zero tolerance" drug policy that applies to students attending alternative programs. She testified that the policy requires a minimum five day suspension and a superintendent's hearing for any substance abuse other than tobacco.

A fifteen year-old ALP student testified that he was sitting a seat or two in front of petitioners' son on the bus and that petitioners' son passed the marijuana "blunt" to him. Petitioners' son testified that a student sitting near him on the bus pulled "a roach of a blunt" from his pocket, lit it, began to smoke it and passed it in front of him. Petitioners' son described "a roach of a blunt" as "where you take the stuffings out of a cigar and you roll marijuana in a cigar wrapping." He testified that the bus driver told the students to open the windows because of the smoke filling the bus and that he threw the blunt out the window without smoking it when it was passed to him.

The paralegal representing petitioners' son questioned witnesses and argued on the student's behalf throughout the hearing. At the close of the hearing, the hearing officer did not issue a decision but stated that the CSE would convene within a week to determine whether, if found guilty, the student's disability for which he was formerly classified was related to the behavior charged.

At a special meeting on November 9, not attended by petitioners, the CSE decided that the student would remain declassified and that his recent behavior in the incident that led to the superintendent's hearing was not a manifestation of a disability. The CSE also decided to recommend to the ALP the development of a plan under Section 504 of the Rehabilitation Act to assist petitioners' son with his educational progress.

By letter dated November 17, 1998, the superintendent adopted the hearing officer's finding that petitioners' son was guilty of possessing marijuana. The superintendent also adopted the hearing officer's recommendations that petitioners' son return to the ALP immediately but remain off the Kenmore East High School campus and excluded from participation in school-sponsored activities until January 29, 1999. Petitioner's son returned to ALP on November 23, 1998. The superintendent also adopted the hearing officer's recommendation ordering petitioners to arrange for a comprehensive drug assessment of their son and a program of counseling on the risks of illegal substance use.

By letter dated November 24, 1998, petitioners appealed the superintendent's decision to respondent. At its December 14, 1998 meeting, respondent upheld the superintendent's decision, including the recommended discipline. Petitioners received notice of respondent's decision by letter on December 15, 1998.

Petitioners commenced this appeal on January 19, 1999, seeking an order expunging from their son's record references to a suspension beyond five school days and declaring that respondent violated their son's rights by excluding him from school beyond five days without scheduling a timely hearing. Petitioners contend that it was improper for respondent to take from November 3 to November 17 to render a hearing decision and to reschedule the hearing at a time when petitioners could not have an attorney present. In addition, petitioners request that I order respondent to amend its policies and practices regarding suspensions and suspension hearings to prevent future violations of Section 3214 of the Education Law. Petitioners contend that respondent failed to meet its burden of proof because the evidence did not support the charge of using an illegal drug. Petitioners also contend that respondent denied their son due process by finding him guilty of possessing marijuana, a charge for which no notice was given. Petitioners further contend that respondent exceeded its authority by requiring petitioners to arrange for their son to enter counseling and undergo a comprehensive drug assessment.

Respondent contends that the petition is untimely because it was not served within thirty days of the December 15 decision and because the petition was completed after the deadline had run. Petitioners concede that the thirtieth day was January 14 and that service was not made until January 19. However, petitioners ask that I excuse the late service because respondent's schools were closed January 13 through 15 due to severe weather and on January 18 for a holiday. Petitioners explain that the petition was not completed within thirty days because it had to contain the late service excuse.

An appeal to the Commissioner of Education under Education Law "310 must be brought within thirty days of the act or decision complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The record indicates that petitioners received respondent's decision on December 15, 1998. The 30-day period within which to file an appeal would therefore expire on January 14, 1999. Respondent does not deny being closed from January 13 through January 15, 1999 due to severe weather conditions and for a holiday on Monday, January 18, 1999. I will accept the allegation of severe weather conditions on Wednesday, January 13 through Friday, January 15 (Appeal of Clabeaux, 21 Ed Dept Rep 687, Decision No. 10,838). In addition, pursuant to General Construction Law "25-a(1), "[w]hen any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day…". Accordingly, because the 30-day appeal period expired on a day respondent was not open for service and respondent did not reopen until after Monday, January 18, 1999, Martin Luther King, Jr. Day, petitioners had until Tuesday, January 19, 1999 – the next succeeding business day – to commence this appeal. The affidavit of service annexed to the petition indicates that the petition was served on January 19, 1999. Respondent's answer does not deny receiving service on that date. Accordingly, I find the petition timely.

The appeal must, however, be dismissed on the merits. I find that the notice of the hearing was reasonable. Education Law "3214(3)(c) provides that no pupil may be suspended for a period in excess of five days unless the pupil is given an opportunity for a fair hearing, upon reasonable notice, at which the pupil shall have the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf. What constitutes "reasonable notice" will vary with the circumstances of each case (Bd. of Educ., Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133). The charges need only be sufficiently specific to advise the student and the student's counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing (Appeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860; Matter of Rose, 10 id. 4, Decision No. 8154). Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings. As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ., Monticello Central School District, supra). Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. v. Commissioner of Education, 91 NY2d 133, 139; Matter of Rose, supra).

Respondent in this case provided notice that petitioners' son was charged with "use" of an illegal drug on the bus to ALP. The hearing record establishes that petitioners and their son were aware that both the ALP student contract signed by petitioners and their son, and respondent's "zero tolerance" policy prohibited possession and use of marijuana on the school bus. Because possession of an illegal drug is a necessary precondition of its use and petitioners and their son were aware that school policy prohibits both possession and use, I therefore find that respondent and the ALP provided adequate notice that possession of marijuana on a school bus was a violation of school policies that could result in the student's suspension. I further find that the hearing notice provided sufficient specificity to enable petitioners and their son to prepare and present an adequate defense.

Petitioners also challenge the finding of guilt. I find that there is sufficient evidence in the record to support the disciplinary determination. One witness testified that petitioners' son admitted using marijuana. Another witness provided eyewitness testimony that petitioners' son possessed the marijuana "blunt." At the hearing under oath, petitioners' son admitted possessing the marijuana "blunt" and throwing it out the open window of the school bus.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Shelli, 37 Ed Dept Rep 725, Decision No. 13,968; Appeal of Osoris, 36 id. 330, Decision No. 13,739; Appeal of Homick, 34 id. 150, Decision No. 13,265). A hearing officer may draw reasonable inferences if the record supports the inference (Board of Education of Monticello Central School District v. Commissioner of Education, supra; Matter of Payne, 18 Ed Dept Rep 280). Given petitioners' son's admission of possession of the marijuana "blunt," the reasonable inferences to be drawn therefrom, and the other witnesses' testimony, I find that the superintendent's determination is supported by competent and substantial evidence. It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts on the record (Appeal of Bowen, 35 Ed Dept Rep 136, Decision No. 13,491; Appeal of Kittell, 31 id. 419, Decision No. 12,686). Accordingly, there is no basis to overturn respondent's determination.

Petitioners' complaint that the hearing order improperly required their son to receive counseling and a drug abuse assessment is moot because respondent answered that it will expunge from petitioners' son's record any indication that he was required to undergo a comprehensive drug assessment and enter into substance abuse counseling.

It is well settled that a school district may not impose alcohol/drug abuse assessments as penalties under Education Law "3214 (Appeal of McMahon, et al., 38 Ed Dept Rep 22, Decision No. 13,976; Appeal of Alexander, 36 id. 160, Decision No. 13,689. Likewise, a school district cannot condition a student's return to school on participation in counseling services (Appeal of McMahon, et al, supra; Appeal of Cynthia and Robert W. and Appeal of Melani and James H., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Holliday, 29 id. 373, Decision No. 12,322).

I have considered the parties' remaining claims and find them without merit.