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Decision No. 14,419

Appeal of M.S. and S.S., on behalf of M.S., from action of the Board of Education of the Downsville Central School District regarding student discipline.

Decision No. 14,419

(August 4, 2000)

Terence P. O'Leary, Esq., attorney for petitioners

Hogan & Sarzynski, attorneys for respondent, Wendy K. DeWind, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal from a determination by the Board of Education of the Downsville Central School District ("respondent") to suspend M.S. for the remainder of the 1999-2000 school year. The appeal must be dismissed.

Petitioners are the grandparents and legal guardians of M.S. M.S., a ninth grade student in respondent's high school at the time of the events leading to this appeal, was suspended on December 23, 1999 for misconduct. He had anonymously placed a gift-wrapped banana and typed note in a female student's locker earlier that day. The typed note contained offensive language and crude insults of a sexual and personal nature directed at the female student, and purported to be signed by three of the female student's best friends. M.S. also put a gift-wrapped onion in another female student's locker, with an anonymous handwritten note stating that this was the "only emotion you will show."

When the first female student found the banana and typed note, she became very emotionally upset and collapsed crying onto the floor. She spent much of the remainder of the day in the guidance office trying to calm down. Another student gathered the banana, onion and notes, and took them to the principal.

After investigating the incident, the principal discovered that M.S. had prepared the typed note in computer class, and that two female 11th grade students and a male 12th grade student were aware of his plans and had marginally participated in drafting the note. He subsequently suspended M.S. from school pending a decision as to whether the superintendent would initiate a disciplinary hearing. The principal also assigned the other students who were aware of M.S. ’s intentions school detention for their failure to come forward before M.S. delivered the wrapped items and notes.

December 23, 1999 was the last day of school before the holiday break, and classes did not recommence until January 3, 2000. On December 30, 1999, the superintendent sent petitioners a notice that a hearing would be held on Thursday, January 6, 2000, to consider charges arising out of the December 23, 1999 incident. M.S. was charged with conduct that was insubordinate or disorderly or endangered the safety, morals or health of others, and which violated school rules or policies against using verbal or physical intimidation; using profane, lewd, vulgar or abusive language or words; or committing a willful act which disrupts the normal operation of the school community.

The hearing convened on January 6, and the school district called several witnesses including the two female victims. Petitioners' attorney asked for an adjournment to subpoena witnesses, and the hearing reconvened on January 11, 2000. The hearing officer issued his recommendation on January 20, and the superintendent, on January 21, 2000, suspended M.S. for the remainder of the 1999-2000 school year. However, the superintendent determined that he would allow M.S. to return as of January 31, 2000 if M.S. would sign a contract of conduct. This contract of conduct is described by respondent as an agreement between the superintendent and suspended student that stays a suspension, and the student is allowed to attend school upon the understanding that any violation of school rules will result in a reimposition of the underlying suspension without the necessity of an additional hearing.

Petitioners appealed the superintendent's determination, and respondent upheld the determination and suspension on February 1, 2000. Respondent advised petitioners of this decision by letter dated February 3, 2000. A request for interim relief was denied on March 16, 2000. Petitioners declined to sign the contract of conduct, so M.S. remained suspended from school for the balance of the school year.

Petitioners contend that respondent improperly refused to readmit M.S. to regular class attendance during the pendency of the superintendent's hearing; that respondent failed to provide alternative instruction prior to January 10, and that the alternative education provided was insufficient; that the contract of conduct is illegal; and that the school's code of conduct violates the student's right to due process because it vests sole discretion in the school officials to determine what punishment should be applied to a particular infraction without adequate standards or criteria to guide the exercise of such discretion. Petitioners seek M.S.'s immediate reinstatement into regular classes, and an order prohibiting school officials from suspending students for more than one day if alternate instruction cannot be immediately provided, prohibiting suspension of students under the age of 16 for more than 5 days for misconduct which did not threaten or in fact cause physical injury and did not pose a hazard to or disrupt school operations, and prohibiting school officials from suspending any student under the age of 16 under Education Law "3214 unless physical safety or ordinary school operations would be jeopardized.

Respondent denies the claims raised by petitioners, and asserts that it complied with all requirements under Education Law "3214 in suspending M.S. from school and that the evidence produced at the hearing supports its determination. Respondent also contends that the petition is untimely, as respondent voted to uphold the suspension on February 1, 2000, and the petition was not served until March 6, 2000, more than 30 days later. Respondent also contends that the petition is defective, because counsel rather than one or both of the petitioners signed the verification.

I will initially address the procedural objections. Although respondent upheld the superintendent's disposition on February 1, 2000, petitioners were not present at respondent's meeting and notice of respondent's decision was not sent to petitioners until February 3, 2000. There is no indication in the record as to the date that petitioners received the February 3, 2000 notification letter. Affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Medina, 32 Ed Dept Rep 183, Decision No. 12,799), the date of receipt of the decision would be February 8, 2000. The petition was served on March 6, 2000, less than 30 days after receipt of the letter, and the appeal is thus timely (Appeal of Lucente, 39 Ed Dept Rep 244, Decision No. 14,227; Appeal of A.B., 36 id. 155, Decision No. 13,687).

However, the petition must be dismissed because it was not properly verified. Section 275.5 of the Commissioner's Regulations requires all pleadings to be verified, and specifically mandates that a petition must be verified by at least one of the petitioners. In the instant appeal, the only verification is by petitioners' counsel, not by one of the petitioners as required by "275.5. It has consistently been held that when a petition is not properly verified, the appeal must be dismissed (Appeal of Davis, 39 Ed Dept Rep 181, Decision No. 14,207; Appeal of Shabazz, 38 id. 481, Decision No. 14,076; Appeal of Biggins, 35 id. 357, Decision No. 13,569).

The appeal must also be dismissed on the merits. Petitioners claim in conclusory terms that the suspension determination was arbitrary and capricious. The crux of their complaint appears to be that the superintendent sustained the charge of committing a "willful act which disrupts the normal operation of the school community," although the students' emotional upset was temporary and there was no evidence that ordinary school operations were disrupted in any significant manner. I disagree. One student was so upset that she was unable to attend her regularly scheduled activities and went to the guidance office. The principal had to conduct an investigation over the course of the rest of the day, interviewing students, discussing the matter with the superintendent, calling the student's parents to come to school to pick him up, and advising the student of the suspension. The principal was thus unable to attend to the ordinary administrative activities required to operate the school. I find that the decision to suspend the student from school was based on competent and substantial evidence (Appeal of Holt-Silvin, 39 Ed Dept Rep 319, Decision No. 14,249; Appeal of Pinckney, 37 id. 284, Decision No. 13,860).

Petitioners also contend that the contract of conduct is coercive and unlawful. I have carefully examined the contract, which permits the suspended student to be readmitted to the classroom on probation upon certain conditions. The contract's provisions include an acknowledgement by the student that he received a suspension for the remainder of the 1999-2000 school year, and that he desired to return to classroom attendance. Upon execution of the contract, the student would be readmitted to classroom instruction as of the start of the second semester, upon the conditions that he will diligently complete his courses, abide by the rules and regulations of the district and the rules of conduct in the student handbook, and will not engage in the specific types of behaviors that had resulted in the suspension. The contract further provides that, if the student violates any of these conditions, upon written notice mailed to the student and his guardians, the superintendent in his discretion could reimpose the period of suspension which had been stayed by virtue of the contract. If the student contests the claim that he violated the conditions, he could request a conference with the superintendent, which would result in a written determination by the superintendent as to whether the suspension will continue to be stayed or will be reimposed.

I do not find that use of such a contract of conduct violates Education Law "3214 or the student's due process rights. Prior to execution of such contract, the student must have had a valid superintendent's disciplinary hearing and suspension that complied with Education Law "3214. The district thus has the legal right to suspend the student for a specified period. The contract of conduct merely provides a way for a student to ameliorate the suspension by agreeing to certain conditions in return for probationary reinstatement into the classroom. None of these conditions impose any special rules or regulations of conduct on the student that are not imposed upon his fellow students (Appeal of Bowen, 35 Ed Dept Rep 136, Decision No. 13,491; Appeal of Homick, 34 id. 150, Decision No. 13,265).

Although a subsequent misbehavior could result in reimposition of the previous suspension without a due process hearing to determine guilt for this new misbehavior, this procedure does not offend Education Law "3214 because reimposition of the prior suspension penalty is not a new punishment for the new misbehavior. The student is also provided with minimal due process procedures, including written notice and the right to request a conference with the superintendent before reimposition of the previous penalty, to contest a determination that he violated any of the conditions of his probationary reinstatement.

Petitioners also contend that respondent improperly refused to readmit M.S. to regular class attendance during the pendency of the superintendent's hearing. The hearing has been completed, so this issue is now moot. The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Lucas, 39 Ed Dept Rep 267, Decision No. 14,233; Appeal of Morenus, 39 Ed Dept Rep 33, Decision No. 14,165).

However, respondent is reminded that Education Law "3214(3)(c) mandates that a suspension may not continue beyond five school days unless and until the student has been afforded an opportunity for a hearing and a determination adverse to the interests of that student has been made (Ross v. Disare, 500 F.Supp. 928 [S.D.N.Y. 1977]; MacDonald v. Tompkins, 67 Misc.2d 338 [Sup. Ct. Onondaga Co. 1971]; Appeal of McMahon, et al., 38 Ed Dept Rep 22, Decision No. 13,976; Appeal of Bajardi, 33 id 371, Decision No. 13,082). Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing sustaining a longer period of suspension is held within the initial five-day suspension period or unless an adjournment is requested by the student or parent (Appeal of McMahon, et al., supra). Respondent in the instant case continued the pre-determination suspension beyond the time charged to petitioners' request for an adjournment, and respondent is admonished to comply in the future with the time limitations specified in "3214.

Petitioners' complaint that respondent did not provide alternative instruction to M.S. prior to January 10, 2000 is similarly moot. However, I note that respondent admitted that it was unable to provide alternative instruction for the first five days of the suspension, from January 3 through 7, 2000, although it subsequently provided additional tutoring to make up for the lapse. I remind respondent that Education Law "3214(3)(e) provides in pertinent part: "Where a pupil has been suspended as insubordinate or disorderly and said pupil is of compulsory attendance age, immediate steps shall be taken for his attendance upon instruction elsewhere or for supervision or detention." The term "immediate" does not mean instantaneous, but it does mean that a school district should act reasonably promptly with regard for the nature and circumstances of the particular case (Turner v. Kowalski, 49 AD2d 943 [2d Dept 1975]; Appeal of McMahon, et al., supra. The record does not reveal the reasons that respondent was unable to provide alternative instruction for the first week of the suspension, but respondent should take immediate steps in the future to provide alternative education to suspended students.

Finally, on the record before me, petitioners have failed to establish that the alternative instruction provided by the district was inadequate. Respondent has provided records of the hours of tutoring provided to the student, and petitioners established no facts to indicate that the content and/or length of the alternative instruction violate Education Law "3214.

On the basis of the foregoing determination, I do not need to address any other issues raised by the parties.