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Decision No. 14,279

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Appeal of DEBORAH P., on behalf of PAULA P., from action of the Board of Education of the Huntington Union Free School District regarding a student suspension.

Decision No. 14,279

(December 21, 1999)

Joseph P. Plonski, Esq., attorney for petitioner

Ehrlich, Frazer & Feldman, attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Huntington Union Free School District ("respondent") affirming the five-day suspension of her daughter, Paula, and requests that respondent be directed to expunge the suspension from her daughter's record. The appeal must be sustained.

The suspension resulted from an incident that occurred on October 18, 1995. Petitioner's daughter, Paula, took part in a field trip on a school bus with three classes of students. At some point during the return trip, Paula's teacher, Margaret Colligan, who was seated in the front of the bus, reportedly smelled marijuana and noticed that the bus windows were open. According to Ms. Colligan's affidavit, she went to the back of the bus where the odor was very strong, and observed Paula and another student in the third to last row kneeling towards the back of the bus. Four additional students occupied the two last rows of the bus. Ms. Colligan informed the six students that if she continued to smell marijuana on the bus she would not allow them off the bus when they returned to school. Upon returning to school, all students were allowed to exit the bus. Ms. Colligan asked another student who had been near the back of the bus to write down the names of the six students she had previously spoken to and to put their names in the teacher's mailbox the following day.

The next day, Ms. Colligan found a note in her box with Paula's name and the name of the student who had been kneeling next to her. During the next week, Ms. Colligan spoke to several other students who had been on the bus to ascertain the identity of those students who had been purportedly using marijuana. One student told Ms. Colligan that she had seen students using marijuana on the bus but did not know their names. Ms. Colligan asked that student to come to one of her classes to point out the students. Paula was identified along with five other students. Two other students also told Ms. Colligan that they had seen Paula and another student smoking on the bus. The students who made the identifications requested that their names not be revealed because they were afraid of reprisals by the identified students. Ms. Colligan then referred the names of the identified students, including Paula, to the principal for disciplinary action. Although the record is not clear on this point, it appears that the principal, Mary Louise Griffin, and the assistant principal also investigated the incident.

On October 24, 1995, petitioner called Ms. Griffin after learning that Paula had been questioned about the incident. The next day, Ms. Griffin suspended four students, including Paula, for five days beginning on October 26, 1995. Ms. Griffin telephoned petitioner to inform her that she had evidence that Paula had smoked marijuana on the bus during the field trip, and told petitioner the name of the teacher who had smelled the marijuana. She also told petitioner that four eyewitnesses had identified Paula smoking on the bus. Ms. Griffin informed petitioner that she was going to have a conference with Paula that day during which she was going to suspend Paula and asked petitioner if she wanted to be present. Petitioner said she would get back to Ms. Griffin and subsequently told her she would not be present for the conference. Ms. Griffin then sent written notice of the suspension to Mr. P. stating that Paula had been suspended from school for five days for "being under the influence of marijuana."

On October 25, Mr. and Mrs. P. notified the superintendent in writing that they were appealing the decision. On October 26, petitioner met with Ms. Griffin and the Assistant Principal to discuss the incident. Although the record is not entirely clear, it appears that Paula served one day of the suspension on October 26 with the remainder of the suspension held in abeyance until the matter was appealed to respondent. According to Ms. Griffin, petitioner never requested to speak to Ms. Colligan during the October 26 meeting or at any time even though she knew Ms. Colligan was the complaining witness.

The superintendent upheld the principal's decision on November 10, 1995. Petitioner then appealed to respondent, requested a hearing with the right to cross-examine witnesses and demanded copies of all reports concerning the incident. A November 16 letter to her counsel informed petitioner that pursuant to Education Law "3214, she was not entitled to a hearing, but was entitled to request an informal conference with the principal at which she would be authorized to ask questions of complaining witnesses. The letter further stated that by failing to appear at the October 25 conference, respondent believed that petitioner had waived her statutory right to a conference with the building principal and right to question the complaining witness. Nevertheless, respondent offered petitioner another opportunity for a conference with the right to question the complaining witness, identified as Margaret Callagan [sic]. Respondent further informed petitioner that she could still seek review by respondent after a principal's conference, or she could skip the conference and proceed directly to the appeal, which would consist of an oral argument. Petitioner opted to proceed with the appeal to respondent, which heard petitioner's arguments on January 24, 1996. On January 25, respondent denied the appeal and imposed the remaining four days of the suspension, which were served on January 31, February 1,2 and 5, 1996. This appeal ensued.

Petitioner objects to the fact that the principal did not notify her that her daughter was the subject of an investigation prior to October 24. Petitioner also objects to the manner of the investigation. Petitioner contends that the decision to suspend Paula was not based on competent and substantial evidence that she participated in the objectionable conduct. Petitioner further claims that she was not given an opportunity to question the complaining witness, that Paula's prior record was used as a basis for the suspension, and that Paula was not provided with any homework or instruction during the period of suspension. Petitioner requests that I order Paula's record expunged or sealed.

Respondent argues that the suspension was based on competent and substantial evidence and that the district's procedures met the required standards of fairness. Respondent asserts that Ms. Colligan, Ms. Griffin and the assistant principal conducted a weeklong investigation and four eyewitnesses identified Paula as one of the students who had smoked marijuana. Respondent further asserts that Ms. Griffin spoke with petitioner before the suspension occurred, and offered petitioner the opportunity to meet with her, but petitioner declined to attend. Respondent claims that petitioner never requested to speak with or question the teacher who was the complaining witness, even though petitioner knew the teacher's name.

Education Law "3214(3)(b) provides that, in the case of a suspension by a principal not to exceed five days, the student and her parents "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 the complaining witnesses." Notice of the right to request an informal conference is required under 8 NYCRR "100.2(l)(4):

4) Parental notice of student suspensions. Where a student is suspended from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student has been suspended from school . . . Such notice shall provide a description of the incident(s) which resulted in the suspension and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(d) . . . (emphasis added).

The purpose of "100.2(l)(4) is to require that parents of a student suspended for five days or less are made aware of the statutory rights provided in Education Law "3214(3)(b), namely, the opportunity, if they choose, to question the complaining witnesses in the presence of the principal who imposed the suspension in the first place, and who has the authority to terminate or reduce the suspension, thereby allowing the principal to decide whether her original decision to suspend was correct or should be modified (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep ___, Decision No. 14,204). It is insufficient to provide merely an opportunity to speak to the principal without the complaining witness present, or an opportunity to speak to the complaining witness without the principal present (Appeal of a Student Suspected of Having a Disability, supra; Appeal of Milano, 37 Ed Dept Rep 472, Decision No. 13,908; Appeal of Jones, 35 id. 1, Decision No. 13,444).

In this case, the written notice of the suspension failed to inform petitioner of her right to request an immediate informal conference as required by 8 NYCRR "100.2(l)(4). Although the principal may have notified petitioner of the suspension by telephone, notification by telephone is required by "100.2(l)(4) in addition to written notice, where possible, and not as a substitute (Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Milano, supra). Furthermore, although petitioner met with the principal on October 26, there is no evidence in the record to indicate that the principal offered petitioner the opportunity to question the complaining witness at that meeting. Respondent's letter of November 16, which informed petitioner of her rights under "3214(3)(b), came too late to overcome the deficiency of the written notice of October 25. Therefore, I am constrained to sustain the appeal (Appeal of Tooley, 39 Ed Dept Rep ___, Decision No. 14,253; Appeal of a Student with a Disability, supra; Appeal of Jones, supra).

Since I am sustaining the appeal, I need not address petitioner's remaining contentions.


IT IS ORDERED that respondent expunge from the records of Paula P. any reference to her suspension on October 26, 1995 and January 31, February 1, 2 and 5, 1996.