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Decision No. 14,883

Appeal of A.L., Jr., on behalf of his son C.L., from action of the Board of Education of the Valley Central School District regarding student discipline.



(June 3, 2003)


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

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Valley Central School District ("respondent") affirming his son"s suspension.  The appeal must be sustained in part. 

On October 23, 2001, the assistant principal of Valley Central High School suspended petitioner"s son, C.L., for five days for possession of marijuana.  The suspension occurred after a study hall monitor found C.L. in possession of a "Game Boy" case containing marijuana cigarettes and rolling papers.

On October 23, the assistant principal contacted petitioner at work and told him to come to the high school. When petitioner arrived, the assistant principal informed him that his son would be suspended for five days and that a superintendent"s hearing would be held to determine whether or not to impose a further suspension.

By letter dated October 24, 2001, and received by petitioner on October 25, the high school principal notified petitioner that his son was suspended through October 30, 2001 for possession of a controlled substance. This letter notified petitioner of his right to have "an immediate informal conference with the high school administration."  By separate letter also dated October 24, 2001, and received on October 25, respondent"s superintendent notified petitioner that a superintendent"s hearing would be held on Monday, October 29, 2001.  The letter contained this charge:

It is alleged that on or about Tuesday, October 23, 2001, while in the Valley Central High School, [C.L.] engaged in conduct which was insubordinate and/or disorderly, and/or violent, and/or disruptive, and/or engaged in conduct that endangered the health, and/or morals and/or safety and/or welfare of others as follows:

Specification 1 :

     [C.L.] was in possession of a marijuana cigarette and/or a partially consumed marijuana cigarette and/or cigarette rolling papers.

In response to these letters, petitioner requested that several witnesses and C.L."s anecdotal record be made available at the hearing.  The district complied with this request.  At the hearing, C.L. testified that he found the case containing marijuana in a school bathroom and placed it in his backpack.  By letter dated October 31, 2001, the superintendent issued a determination that petitioner"s son was guilty as charged.  He imposed an additional 10-day suspension through November 9, 2001.  Petitioner appealed this determination to respondent, which upheld the superintendent"s decision at its November 13, 2001 meeting.  This appeal ensued.  Petitioner"s request for interim relief was denied on December 14, 2001.

Petitioner contends that the assistant principal was not authorized to suspend C.L., that he did not receive timely written notice of the initial suspension and that he was never offered an informal conference with an opportunity to question witnesses.  Petitioner also claims that the notice of the October 29 superintendent"s hearing was not timely; that the superintendent"s hearing was biased and prejudicial; that C.L. was not guilty of the charges against him; and that the penalty imposed was disproportionate to the alleged offense.  Finally, petitioner claims that the home instruction C.L. received while on suspension was inadequate.  Petitioner requests an order expunging the suspensions from C.L."s record, directing respondent to withdraw the police report regarding the incident, and requiring respondent to provide C.L. with additional instruction.

Respondent maintains that C.L. was properly suspended, and that petitioner was provided an informal conference with the assistant principal, who spoke with petitioner on October 23, 2001.  Respondent also contends that petitioner was properly notified of the charge against C.L. Furthermore, respondent maintains that petitioner was allowed an opportunity to examine C.L."s anecdotal record, to call witnesses at the hearing, and to question them extensively. Respondent alleges the superintendent"s determination was supported by the record and the penalty imposed was appropriate to the offense.  Finally, respondent alleges that the home instruction provided to C.L. was adequate. 

Education Law "3214(3)(a) authorizes a board of education or trustees, superintendent of schools, district superintendent or a school principal to suspend a student.

Education Law "3214(3)(b)(1) provides that, in the case of a suspension for a period not to exceed five days, the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal" at which they may present the student"s version of the event and ask questions of the complaining witnesses.  Notice of the right to request an informal conference is required by "100.2(l)(4) of the Commissioner"s regulations, which provides:

(4) Parental notice concerning student suspensions.  When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be suspended from school.  Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension at the last known address or addresses of the parents or persons in parental relation.  Where possible, notification shall also be provided by telephone if the school has been provided with a telephone number(s) for the purpose of contacting parents or persons in parental relation.  Such notice shall provide a description of the incident(s) for which suspension is proposed and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b).  Such notice and informal conference shall be in the dominant language or mode of communication used by the parents or persons in parental relation to the pupil.  Such notice and opportunity for an informal conference shall take place prior to the suspension of the student unless the student"s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable.

The purpose of "100.2(l)(4) is to make the parents of a student suspended for five days or less aware of the statutory right provided in Education Law "3214(3)(b) to question the complaining witnesses in the presence of the principal who proposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his original decision to suspend was correct or should be modified.  It is insufficient to provide merely an opportunity to speak to the principal without the complaining witnesses present, or an opportunity to speak to the complaining witness without the principal present (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 546, Decision No. 14,533; Appeal of Milano, 37 id. 472, Decision No. 13,908; Appeal of Pinckney, 37 id. 284, Decision No. 13,860).

Respondent"s administrators failed to comply with the statute and regulations in more than one respect.  The assistant principal apparently imposed the suspension.  He signed the disciplinary referral form, contacted petitioner, and instructed petitioner on the conditions of the suspension. The record reflects he did so without consulting the principal.  The statute does not authorize an assistant principal to suspend students; nor does it authorize the principal to delegate his authority to suspend (Appeal of E.R., 40 Ed Dept Rep 599, Decision No. 14,565; Appeal of Pinckney, supra).  The fact that respondent"s principal signed a letter to petitioner the following day does not establish that he imposed the suspension. 

Furthermore, the letter to petitioner dated October 24 and received October 25 does not meet the regulatory requirements described above.  Respondent"s administrators did not provide petitioner with timely written notice in advance of the suspension or provide an opportunity for an informal conference with the principal before the suspension.  Nor did it indicate that the student"s continued presence in school posed a threat of any sort.  Respondent"s claim that the conversation between the assistant principal and petitioner on October 23 constituted an informal conference is incorrect.  Education Law "3214(3)(b) requires that the conference be with the principal and that it include an opportunity to question the complaining witnesses.  Accordingly, the five-day suspension must be annulled and expunged from C.L."s record (Appeal of Milano, supra; Appeal of Pinckney, supra). 

Although the initial five-day suspension must be overturned, that does not entirely resolve the matter, because a subsequent superintendent"s hearing was held and an additional suspension was imposed.  Petitioner contends that the three-day notice of the hearing he received was inadequate.  However, Education Law "3214(c)(1) requires only "reasonable notice" and three days notice has been found sufficient (See Appeal of Harkola, 38 Ed Dept Rep 769, Decision No. 14,139).  Education Law "3214(3)(a) authorizes the suspension of "a pupil who is insubordinate or disorderly, or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others."  However, the decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd of Educ of City School Dist of City of New York v. Mills, 293 AD2d 37; Appeal of T.N., 42 Ed Dept Rep ___, Decision No. 14,836; Appeal of C.D., 41 id. ___, Decision No. 14,642).  In this case, C.L. admitted possessing the Game Boy case containing marijuana. However, he claimed to have found the container in the bathroom. The superintendent found that C.L."s possession of marijuana and/or his failure to promptly turn the marijuana over to anyone in authority after he found the container, were sufficient grounds to suspend him. Here, the superintendent"s findings are supported by the facts in the record.  Accordingly, there is no basis to overturn his decision.

Petitioner claims that the superintendent was biased in his conduct of the suspension hearing.  However, the tapes of the hearing, which petitioner included in the record, do not indicate any bias on the superintendent"s part.  Petitioner was allowed to call all of the witnesses he requested and to question them at length.   

Petitioner also claims that, because this infraction was his son"s first offense and no harm was done, a lesser penalty should have been imposed. In a case of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of T.N., supra; Appeal of P.K., 41 Ed Dept Rep ___, Decision No. 14,733; Appeal of C.D., supra).  The test to be applied in reviewing the propriety of a particular penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Lee D., 38 Ed Dept Rep 262, Decision No.14,029; Appeal of Alexander, 36 id. 160, Decision No. 13,689).  Where a penalty is excessive, the Commissioner will substitute his judgment for that of the board of education (Appeal of R.D., 42 Ed Dept Rep ___, Decision No. 14,837; Appeal of J.Y. and E.Y., 40 id. 9, Decision No. 14,403).  Based on the record, I cannot conclude that a ten-day suspension for possession of marijuana and/or failure to promptly turn contraband over to school authorities is so excessive as to warrant the substitution of my judgment for that of respondent (see, Appeal of Lee D., supra; Appeal of Robert D., 38 Ed Dept Rep 18, Decision No. 13,975).

Finally, petitioner argues that respondent failed to provide C.L. with adequate alternative instruction during the period of suspension.  Petitioner contends that two hours of instruction each day is insufficient and that the actual instruction C.L. received did not permit him to keep pace with his classes.  Education Law "3214(3)(e) requires school districts to provide alternative instruction to students of compulsory school age who are suspended from school.  Alternative instruction must be substantially equivalent to the student's regular classroom program (Appeal of Deborah F., 42 Ed Dept Rep  ___, Decision No. 14,813; Appeal of Camille S., 39 id. 574, Decision No. 14,316).  The question of whether a program offers substantially equivalent instruction must be decided on a case-by-case basis (Appeal of Deborah F., supra; Appeal of Camille S.supra).  Previous Commissioner's decisions have found two hours of alternative instruction per day sufficient to fulfill a district's obligation under the Education Law (Appeal of Camille S., supra). 

C.L."s November 1, 2001 report card shows that he received "incompletes" in five courses.  Petitioner states that several teachers advised him that they held work for C.L. to do upon his return rather than sending assignments to C.L."s tutor.  I find this troubling, even if petitioner"s son had the opportunity to make up this work in the following quarter.  Although petitioner has not proven that the instruction was not "substantially equivalent," respondent is reminded to fully comply with Education Law "3214 regarding the provision of alternative instruction.   


IT IS ORDERED that respondent"s suspension of C.L. from October 24-30, 2001, be annulled and expunged from his record.