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Decision No. 14,870

Appeal of M.M., on behalf of P.M., from action of the Board of Education of the City School District of the City of Schenectady regarding student discipline.


Decision No. 14,870


(May 23, 2003)


Shari Greenleaf, Esq., attorney for respondent                 

Petitioner appeals the decision of the Board of Education of the City School District of the City of Schenectady to discipline his son, P.M.  The appeal must be dismissed.

P.M. is a student at respondent"s Mont Pleasant Middle School ("Mont Pleasant"), which is located near respondent"s Pleasant Valley Elementary School ("Pleasant Valley").  Pursuant to district policy, Mont Pleasant students are not permitted on Pleasant Valley school grounds.  A daily announcement is made on the public address system reminding Mont Pleasant students of this policy.  On November 21, 2001, a Pleasant Valley teacher discovered P.M. playing basketball in the Pleasant Valley gymnasium with two other middle school students standing nearby.  The teacher asked the students to leave.  The two other students apparently left the gymnasium and moved to the hallway, but P.M. tried to hide.  The teacher again asked him to leave and P.M. complied grudgingly, walking very slowly and making hand gestures.  There was apparently a confrontation between the two with the teacher telling P.M. not to act "like a punk" and P.M. attempting to "head-butt" the teacher.  After finally leaving the school building, P.M. threw rocks at the glass front door of the building.

That same day, the Mont Pleasant principal investigated and imposed a five-day suspension on P.M. According to school registration records, P.M. lives with his mother, and it appears that respondent routinely communicates only with P.M."s mother.  However, petitioner, P.M."s father, became aware of the suspension and communicated his concerns to district administrators.  On November 27, 2001, petitioner and P.M. met with the Mont Pleasant principal and an assistant principal, the teacher and the Pleasant Valley principal.  At the meeting, petitioner accused the teacher of calling P.M. a punk and using a racial epithet.  The teacher apologized for telling P.M. to stop acting "like a punk."  P.M. was permitted to serve the final day of his suspension in school and returned to regular classes on December 3, 2001.

On Friday, November 30, 2001, a notice that a superintendent"s hearing would be held on December 4, 2001 was hand-delivered to P.M."s mother"s address.  Neither P.M. nor his parents attended the hearing.  Respondent"s superintendent sent P.M."s mother a letter stating that he found P.M. guilty and suspending him for 10 weeks beginning December 5, 2001.  On December 14, 2001, petitioner met with the superintendent and several other administrators.  At the conclusion of that meeting, the superintendent directed further investigation into the alleged name-calling incident.  On December 20, 2001, as part of the investigation, the district"s principal assigned to the Safe Schools Office interviewed P.M. in the presence of petitioner.  After hearing from several staff members who investigated the matter, the superintendent concluded that the allegation that the teacher had used a racial epithet was unsubstantiated.  However, he directed the Pleasant Valley principal to counsel the teacher about making inappropriate comments to students.

By letter dated December 21, 2001, respondent"s clerk sent petitioner a copy of the audiotape and transcript of the December 4, 2001 superintendent"s hearing and described the procedure for appealing the determination.  On January 3, 2002, petitioner wrote to respondent alleging that the teacher had assaulted P.M. and used a racial epithet. Petitioner alleged that neither he nor his son had been notified of the superintendent"s hearing and asked that P.M. be returned to school.  By letter dated January 17, 2002, respondent notified petitioner that it had reviewed the investigation and would take no further action.  By letter dated January 21, 2002, petitioner appealed the superintendent"s decision to suspend P.M.  By letter dated February 7, 2002, respondent notified petitioner that it had upheld the superintendent"s decision.  This appeal ensued.

Petitioner contends that he and P.M. were never notified of the superintendent"s hearing.  Petitioner further contends that respondent should have met with him and P.M. as part of the appeal process.  Petitioner alleges that the teacher used a racial epithet and called P.M. a "punk" during their confrontation in the gymnasium.  Petitioner requests that respondent"s decision be reversed and P.M."s record expunged.  Petitioner also asks that the teacher be sanctioned and that P.M. be given a formal apology.

Respondent contends that it sent P.M."s mother proper legal notice of the superintendent"s hearing.  Respondent argues that the appeal is untimely and that petitioner failed to join necessary parties.  Respondent also asserts that the petition served upon it was not verified.

Respondent asserts that the petition is not properly verified as required by "275.5 of the Commissioner"s regulations.  However, the petition submitted to my Office of Counsel contained the requisite verification.  Although petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a verified petition (Appeal of McSween, 42 Ed Dept Rep ___, Decision No. 14,775;  Appeals of Campbell and Coleman, et al., 41 id. ___, Decision No. 14,665).

Petitioner"s claim for relief against the teacher must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Olsen, 42 Ed Dept Rep ___, Decision No. 14,761; Appeal of Roff, 41 id. ___, Decision No. 14,708).  Here, petitioner seeks sanctions against the teacher.  Clearly, a decision in petitioner"s favor would adversely affect the teacher.  Therefore, he should have been joined as a party and petitioner"s failure to do so requires dismissal of the appeal as it relates to him.

Education Law "3214(3)(c)(1) provides that no pupil may be suspended in excess of five days unless the pupil and person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil shall have the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil"s behalf.  Respondent states that it complied with the statute by delivering notice of the superintendent"s hearing to P.M."s mother, who is the parent listed on district registration forms.  Petitioner alleges that he personally requested that the Mont Pleasant principal Comely and an assistant superintendent give him notice as well.  Respondent denies this allegation.  The record before me contains no evidence regarding P.M."s legal custody or M.M."s parental rights.  Based on the record, I cannot conclude that petitioner was also entitled to notice of the hearing.

A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Board of Educ. v Mills, 293 AD2d 37; Appeal of J.C. and P.C., 41 Ed Dept Rep ___, Decision No. 14,723; Appeal of Harlan, 40 id. 309, Decision No. 14,488).  Petitioner does not dispute that P.M. entered an elementary school building where he was not authorized to be, attempted to hide from the teacher who directed him to leave, had an altercation with the teacher and then threw rocks at a glass door, potentially creating a dangerous situation.  Respondent also submitted a number of disciplinary referrals given to P.M. in the weeks leading up to this incident, including one for throwing materials at another student.  Based on the record before me, I do not find the punishment imposed on P.M. to be excessive.  Therefore, I will not order that P.M"s record be expunged.

In light of this disposition, I need not address the parties" remaining contentions.