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Decision No. 14,837

Appeal of R.D., on behalf of D.D., from action of the Board of Education of the City School District of the City of Middletown regarding student discipline.



(February 11, 2003)


Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Middletown ("respondent") to suspend her son, D.D., for five days during the 2002-2003 school year. The appeal must be dismissed.

During the 2001-2002 school year, D.D. was a seventh grade student attending respondent's Monhagen Middle School.  On June 18, 2002, the last day of classes, D.D. allegedly engaged in misconduct during an examination review in his English class.  A meeting was held that same day with petitioner, D.D. and the assistant principal to discuss D.D."s conduct.  At the meeting, the assistant principal informed petitioner that bus transportation for D.D. would be suspended for the remainder of the 2001-2002 school year and that D.D. would not be permitted to attend his final examinations with his classmates, but could take the examinations with an appointed proctor.  Petitioner subsequently provided transportation, and D.D. took all his final examinations. 

On June 19, 2002, petitioner was hand-delivered a letter from the principal suspending D.D. from attendance  for five days and stating that he could return to school on September 11, 2002.  The specific charges against D.D. were:

"Levels one - four; Disorderly, Pushing, disrespectful, defiance of a staff member's request.  [D.D.] refused to stop calling out in the classroom, causing disruption, using profanity, and he was continually asked to stop his inappropriate behavior."

     An informal conference was held on June 19, 2002 with petitioner, the principal and assistant principal.  Petitioner was informed that, because D.D."s conduct occurred on the last day of the school year, his suspension would begin on September 4, 2002 and end on September 10, 2002.  Petitioner subsequently spoke with respondent's superintendent by telephone and the superintendent stated that he had reviewed D.D.'s record and supported the principal's decision.

     Petitioner then appealed the suspension to respondent.  By letter dated June 28, 2002, respondent denied petitioner's appeal.  By letter dated July 11, 2002, the superintendent indicated that D.D.'s suspension would be served September 9 through 13, 2002.  This appeal ensued.  Petitioner's request for interim relief was denied on August 27, 2002.

     Education Law "3214(3)(a) authorizes a board of education to suspend a pupil who is "insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others."  Education Law "3214(c)(1) further provides that no pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil have an opportunity for a fair hearing, including the right to questions witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf.

     The record establishes that D.D. was insubordinate, disorderly and disruptive so as to warrant suspension.  The English teacher's disciplinary referral, together with the statements of the attendance secretary and the secretary to the assistant principal, establish that during his English examination review class, D.D. refused to stop calling out, yelled at the teacher and others, jumped out of his seat, jumped on another student's head, refused the teacher's request to go to the office, tried to take away the teacher's disciplinary referral, threatened to tear up such referral, and continued to be verbally abusive to the teacher after he was escorted to the assistant principal's office. 

Petitioner does not deny or dispute that such misconduct took place, but instead contends that respondent's imposition of a five-day suspension in September 2002 violates Education Law "3214 because such period, when combined with the actions taken in June 2002, exceeds the five-day maximum period for suspension of a student without a hearing.  Specifically, petitioner alleges that respondent's denial of transportation and prohibition against D.D. from taking his final examinations with his classmates on June 19, 20, 21, 24 and 25, 2002, constitute an additional five days of "suspension" under Education Law "3214.

Respondent denies petitioner's allegations and contends that D.D. was properly suspended pursuant to Education Law "3214 and that neither suspension from transportation nor requiring petitioner's son to take his final examinations at a separate time from his classmates constitute a "suspension" for purposes of the statute.

I agree with respondent.  A pupil's entitlement to transportation is not the equivalent of the right to attend upon instruction and petitioner's son is not entitled to the protection of Education Law "3214(3) with regard to the suspension of transportation services (Appeal of McGaw, 28 Ed Dept Rep 84, Decision No. 12,037; Matter of Roach, 19 id. 377, Decision No. 10,176).  Similarly, an in-school suspension or other similar disciplinary steps taken by school administrators do not require a full hearing pursuant to Education Law "3214(3) (Appeal of Denis, 40 Ed Dept Rep 306, Decision No. 14,487; Appeal of Michael J.A., 39 id. 501, Decision No. 14,293; Appeal of Kainz, 38 id. 339, Dec. No. 14,049).  Requiring petitioner's son to take his final examinations at an alternative location is similar to an in-school suspension wherein instruction is provided at an alternative location.  Accordingly, I find that the exclusion of petitioner's son from transportation in June 2002 and the requirement that he take his final examinations at an alternative site are not "suspensions" pursuant to Education Law "3214(3) so as to preclude respondent from suspending D.D. from attendance during a five-day period in September 2002.

I also find without merit petitioner's contention that she was not offered an opportunity to speak with or question complaining witnesses.  The record establishes that petitioner met with the assistant principal on the date of the incident.  Petitioner acknowledges that the complaining teacher attended the meeting for a short time and was available for questions.  Petitioner also had an informal conference with the principal on the next day, June 19, 2002.  Petitioner does not dispute her son's alleged misconduct and there is nothing in the record to indicate that she made any request to question the complaining witnesses at either meeting.

The penalty imposed must be proportionate to the offenses involved and must not be so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of Joseph F., 39 Ed Dept Rep 242, Decision No. 14,226).  Upon the record before me, I find that respondent's imposition of a five-day suspension at the beginning of the 2002-2003 school year is neither arbitrary, unfair or excessive.  The record establishes that petitioner's son was disruptive, insubordinate and disorderly so as to justify such suspension.  Since the misconduct occurred on the last day of classes for the 2001-2002 school year, such suspension could only be meaningfully implemented at the beginning of the following school year.