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Decision No. 14,293

Appeal of MICHAEL J. A., on behalf of M. A., from action of the Board of Education of the Sayville Union Free School District relating to student discipline.

Decision No. 14,293

(January 18, 2000)

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

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Sayville Union Free School District ("respondent") upholding disciplinary action imposed upon his daughter. The appeal must be dismissed.

Petitioner appeals a five day in-school suspension and suspension from participation in extracurricular activities for the remainder of the 1997-98 school year imposed upon his daughter, a student at Sayville High School. Respondent's principal disciplined petitioner's daughter because she was intoxicated at the Sayville High School's "Winter Semi-Formal" held on March 6, 1998. Early in the evening, a number of students appearing to be under the influence of alcohol began fainting and/or vomiting both outside and inside the school. Emergency personnel and the police responded to the scene. During the incident, respondent's principal observed petitioner's daughter walking unsteadily toward a water fountain. He asked her to try to walk a straight line, and, when she could not do so, the principal telephoned the student's family, who came to pick her up.

The next day, March 7, 1998, respondent's principal decided to impose an in-school suspension for five days and a suspension from participation in extra-curricular activities for the balance of the school year upon each student involved in the incident. The following morning March 8, 1998, he telephone the parents of the affected students, including petitioner, to advise them of his decision.

On March 9, 1998, respondent's principal met with all of the disciplined students, including petitioner's daughter, and informed them of their punishment. That evening, the principal spoke with petitioner a second time about the penalty imposed upon his daughter. The principal provided written notification of the disciplinary action in letters dated March 10 and March 17, 1998.

Petitioner appealed to respondent's superintendent of schools. The superintendent spoke with petitioner by telephone on March 12, 1998, and notified petitioner that he would not overturn the principal's decision. The superintendent invited petitioner to attend respondent's monthly board meeting that evening.

In a letter to respondent dated March 12, 1998, petitioner requested review of the disciplinary action taken by the principal and superintendent. Respondent reviewed the letter in executive session prior to its March 12 meeting. At the board meeting, which petitioner attended, respondent's president stated that respondent had determined not to disturb the penalty imposed.

On April 16, 1998, petitioner commenced this appeal. The petition included a request for an interim order permitting petitioner's daughter to participate in extracurricular activities for the balance of the school year during the pendency of the appeal. At that time, the student had already served the five day in-school suspension. Petitioner's request for interim relief was denied on April 29, 1998. Petitioner also seeks expungement of his daughter's record.

Petitioner challenges the discipline imposed upon his daughter on two grounds. First, he claims that respondent did not provide his daughter with required due process prior to imposing the discipline. Second, he challenges the penalty as excessive. Respondent contends that the appeal must be dismissed as untimely. Respondent also asserts that it afforded petitioner's daughter the due process to which she was entitled and that the penalty imposed is appropriate.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner be instituted within thirty days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (Appeal of Houghton, 38 Ed Dept Rep 777, Decision No. 14,141). Petitioner's letter to respondent, dated March 12, 1998, which requested review of the penalty imposed upon his daughter, was reviewed by respondent at an executive session held prior to its March 12 public meeting. Petitioner contends that he received no response from respondent to his letter. However, the record indicates that petitioner attended the March 12, 1998 board of education meeting at which respondent announced that it would not disturb the disciplinary penalty imposed upon his daughter. Accordingly, petitioner had thirty days therefrom to commence this appeal. Instead, petitioner did not serve the petition upon respondent until April 16, 1998, thirty-five days after respondent's March 12, 1998 decision. Therefore, the appeal must be dismissed as time-barred (Appeal of Miller, 35 Ed Dept Rep 451, Decision No. 13,598; Appeal of Epstein, 34 id. 572, Decision No. 13,412).

The appeal must also be dismissed on the merits. Petitioner's claim that respondent did not afford his daughter appropriate due process before imposing discipline is unfounded. Petitioner erroneously argues that his daughter was entitled to a hearing prior to respondent's imposition of in-school suspension and suspension from extracurricular activities. However, in-school suspensions and the suspension of student privileges to participate in extracurricular activities and events are not governed by Education Law "3214, which sets forth a student's right to a hearing (Appeal of Kainz, 38 Ed Dept Rep 339, Decision No. 14,049; Appeal of Catherine B., 37 id. 34, Decision No. 13,797; Appeal of Douglas and July H., 36 id. 224, Decision No. 13,707). Pursuant to that statute, the imposition of a building principal's suspension of five days or less entitles the pupil and the pupil's parent(s) to an opportunity for an informal conference with the principal, upon request, with the right to question complaining witnesses. For out-of-school suspensions of five days or more, the pupil and the pupil's parent(s) are entitled to a formal hearing (Education Law "3214[3][c]). In contrast, the procedures governing suspension of student privileges or the imposition of administrative discipline need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of Forster, 31 Ed Dept Rep 443, Decision No. 12,693).

Petitioner's daughter's in-school suspension began on Monday, March 9, 1998. The previous day, respondent's principal telephoned petitioner to discuss the penalty imposed. On Monday night, they spoke again by telephone concerning the suspension. On Thursday, March 12, 1998, respondent's superintendent spoke with petitioner in a telephone conversation pertaining to the disciplinary action. Finally, petitioner submitted a written appeal to respondent at its March 12, 1998 meeting. Respondent considered petitioner's request for review in executive session, and decided not to disturb the penalty imposed.

Thus, petitioner discussed his daughter's conduct and the penalty with the person authorized to impose the discipline, as well as those authorized to review the discipline. Accordingly, I find that petitioner's daughter was provided with all the due process to which she was entitled.

Petitioner also challenges the measure of discipline imposed. The Commissioner of Education will not substitute his judgment for that of a board of education, unless the discipline imposed constitutes an excessive penalty (Appeal of Lago, 38 Ed Dept Rep 723, Decision No. 14,126; Appeal of Hyde, 38 id. 719, Decision No. 14,125). Moreover, the Commissioner has repeatedly refused to disturb penalties imposed upon students for alcohol-related offenses (Appeal of Robert D., 38 Ed Dept Rep 18, Decision No. 13,975; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899; Appeal of Wood, 27 id. 92, Decision No. 11,882). In Appeal of Cynthia and Robert W., supra, wherein students were found to be in possession of liquor at a school athletic event, I held that a two month suspension and suspension from extracurricular events for the remainder of the school year was not excessive. Similarly, the penalty herein of five days in-school suspension and suspension from extracurricular activities imposed upon petitioner's daughter for use of alcohol and intoxication at a school event is not excessive; it constitutes a fair and proportionate penalty for the conduct charged.

Petitioner also erroneously asserts that the discipline imposed exceeded the guidelines for disciplinary action set forth in respondent's student handbook. For each offense, there are two steps of punishment: Step 1 for first time offenders and Step 2 for repeat offenders. The students suspended for being intoxicated at the semi-formal all fell within the Step 1 category. Specifically, the student handbook indicates that drinking and/or drug use in or on school grounds is punishable by an in-school suspension of one to five days, suspension from interscholastic athletics, clubs, etc., and loss of co-curricular privileges. Furthermore, under the heading "Suspension" on page 32 of the student handbook, it is provided, in relevant part, that " . . . [a]ny student reported on a disciplinary report can expect one or more of the following actions: . . . (e) in-school suspension(s); . . . (i) loss of school privileges ( . . . co-curricular programs, interscholastic athletics, etc.)." The Handbook also provides that improper conduct at dances and/or athletic events can result in loss of privileges to attend future events and in-school suspension(s). Consequently, the five day in-school suspension and suspension from extracurricular activities for the balance of the school year imposed in this matter was within the prescribed penalties set forth in the student handbook for the offense committed by this student.

Therefore, upon my review of the record and the reasons set forth above, I find no basis on which to disturb respondent's determination upholding the discipline imposed upon petitioner's daughter by its principal and superintendent.