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Decision No. 15,237

Appeal of M.S., on behalf of her son Z.S., from action of the Board of Education of the City School District of the City of Tonawanda regarding student discipline.

Decision No. 15237

(June 16, 2005)

Suzanne M. Burns, Esq., attorney for petitioner

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Tonawanda regarding her son's suspension. The appeal must be sustained in part.

In 2004, petitioner's son, Z.S., was a member of respondent's varsity football team. On October 1, 2004, Z.S. allegedly attended a high school football game under the influence of alcohol. By letter dated October 5, 2004, respondent's high school principal notified petitioner that Z.S. would be suspended from October 5, 2004 through October 13, 2004 because of the incident. By letter dated October 6, 2004, the superintendent notified petitioner that a hearing had been scheduled for October 13, 2004.

At the hearing, respondent's guidance counselor and Dean of Students/Director of Athletics testified that Z.S. admitted to them that he was under the influence of alcohol while at the football game. The superintendent found Z.S. guilty and imposed a ten-week suspension. On November 10, 2004, respondent upheld the finding of guilt and the penalty. This appeal ensued.

Petitioner claims that respondent's short-term suspension notice was insufficient. Petitioner also contends that respondent violated Z.S.'s right to privacy, privilege against self-incrimination and due process. Petitioner further asserts that respondent's determination of guilt is not supported by competent and substantial evidence. Petitioner requests that I order her son's suspension annulled and his records expunged.

Respondent contends that its short-term suspension notice was legally sufficient. Respondent further argues that the suspension was based on competent and substantial evidence.

Preliminarily, I find that because the student has served the suspension, the appeal is moot except to the extent that petitioner seeks expungement of his records (Appeal of a Student with a Disability, 44 Ed Dept Rep 136, Decision No. 15,124; Appeal of a Student with a Disability, 43 id. 372, Decision No. 15,021).

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 facts and ask questions of 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, in pertinent part:

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... 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)... (Emphasis added)

 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.

In this case, the principal's October 5, 2004 letter to petitioner does not meet the requirements described above. The letter failed to inform petitioner that she could request an opportunity to question complaining witnesses (Appeal of R.M. and L.M, 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of R.J. and D.J., 44 id. 191, Decision No. 15,145; Appeal of P.F. and M.F., 42 id. 390, Decision No. 14,890). Accordingly, the short-term suspension must be annulled and expunged from Z.S.'s record (Appeal of B.C. and A.C., 42 Ed Dept Rep 395, Decision No. 14,891).

I also find that the short-term suspension exceeded the five-day limit set forth in �3214(3)(b). The principal's October 5, 2004 letter states that the student was suspended from October 5, 2004 through October 13, 2004. I remind respondent of the need to abide by the statutory five-day limit in the future.

With respect to the student's long-term suspension, I find no basis to disturb respondent's determination of guilt. Education Law �3214(3)(a) authorizes a school district 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." 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 Monticello CSD v. Commissioner of Educ., 91 NY2d 133, 140-41; Bd. of Educ. of the City School Dist. of the City of New York v. Mills, 293 AD2d 37).

In this case, Z.S. admitted to two school officials that he was under the influence of alcohol while at the football game. I reject petitioner's argument that those admissions are protected by privilege. No decision of the courts or the Commissioner of Education has yet granted privileged status to communications between a student and school personnel (Appeal of the Board of Education of the City School District of the City of New York, 31 Ed Dept Rep 378, Decision No. 12,673). Moreover, to the extent the testimony constituted hearsay evidence, it is admissible in administrative hearings and hearsay evidence alone may constitute competent and substantial evidence (Appeal of S.C., 43 Ed Dept Rep 222, Decision No. 14,978; Appeal of a Student Suspected of Having a Disability, 41 id. 341, Decision No. 14,707).

I have considered petitioner's remaining contentions and find them to be without merit. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of R.M. and L.M., supra). Here, petitioner failed to meet that burden.


IT IS ORDERED that respondent's suspension of petitioner's son from October 5-13, 2004 be annulled and expunged from his record.