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Decision No. 14,305

Appeal of MARTHA and PETER F., on behalf of W. F., from action of the Board of Education of the Webutuck Central School District regarding a student suspension.

Decision No. 14,305

(February 11, 2000)

Thomas P. Halley, Esq., attorney for petitioners

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the suspension of their son and ask that I annul the disciplinary proceeding and order a new disciplinary proceeding. The appeal must be dismissed.

On April 23, 1999, petitioners' son was a student at the Webutuck High School, when he became involved in a fight with another student. By letter dated April 26, 1999, their son was suspended by the principal from April 26 through April 30. Thereafter, the superintendent issued a notice of a disciplinary hearing to be held on Monday, May 3, 1999, with a list of charges attached.

On May 3, both petitioners, their son, and their attorney (not the same attorney who represents them in this appeal) appeared before the hearing officer, Richard Linden. The school district was also represented by counsel. According to the transcript of the hearing, the attorneys for the parties reached an agreement, and petitioners' attorney entered a "plea" of no contest to the charges, but with no admission of guilt. It appears that the attorneys for the parties then conferred outside the hearing room, and agreed to a suspension for the remainder of the 1998-1999 school year. Upon entering these stipulations into the record, the hearing officer closed the proceeding.

That same day, the superintendent received and reviewed the hearing officer's report and recommendation, and concurred. By letter dated May 3, 1999, petitioners' son was suspended from school through June 30, 1999. The superintendent's determination was affirmed by the board of education on May 13. Petitioners commenced this appeal on June 8, 1999, and sought a stay of the suspension; their application for interim relief was denied on June 17.

Petitioners raise a number of issues with respect to the manner in which the disciplinary proceeding was conducted, including a claim that the notice of hearing was insufficient because it omitted certain essential information, and was served so late that they were unable to prepare an effective defense. They claim that the principal refused to identify witnesses to be called by the school district at the hearing, and did not give them the opportunity for an informal conference. They ask that I annul the determinations as to guilt and penalty, and direct that a new hearing be held.

Respondent generally denies petitioners' claim, and argues that the proceeding was fair. Respondent particularly relies upon the stipulations made at the hearing and argues that any irregularities which might have occurred prior to that point have effectively been rendered moot.

The appeal must be dismissed. At the time of the hearing, petitioners' attorney, in their presence, entered into stipulations before the hearing officer waiving the right to contest the charges against their son and agreeing to a suspension for the remainder of the school year. Such knowing, voluntary stipulations should be given the same effect as if made in a court of law (see, e.g., Central New York Regional Market Authority v. John B. Pike, Inc., 120 AD2d 958, motion for leave to appeal denied, 69 NY2d 602). A stipulation which resolves a proceeding in essence makes prior procedural errors moot (see, e.g., Birchwood Towers No. 2 Associates v. Schwartz, 98 AD2d 699).

The law favors knowing, voluntary stipulations, because they allow the parties to limit their areas of disagreement and promote efficiency in the decision making process. A party seeking to set aside a stipulation bears a heavy burden of proof, and stipulations are seldom set aside without a showing of fraud, collusion, mistake, accident, or some other similar grounds (see, e.g., McKinney's CPLR, C2104:3; 105 NY Jur 2d, Trial, ""267-273). Here, the petition does not even mention the stipulations. Respondent has raised the stipulations as a bar to this appeal in its answer and provided a copy of the transcript of the May 3, 1999, proceeding. Petitioners have not served a reply and have not set forth any reason why the stipulations should not be enforced. As a result, the appeal must be dismissed.

Although I am constrained to dismiss the appeal, I remind respondent that procedures for student suspensions contained in 8 NYCRR "100.2(l)(4) must be strictly followed. I also remind respondent that, where the compulsory education statute is applicable, it must make immediate efforts to provide alternative instruction to suspended students.