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Decision No. 15,536

Appeal of H.B., on behalf of S.C., from action of the Board of Education of the Baldwinsville Central School District regarding student discipline.

Decision No. 15,536

(February 27, 2007)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Marc H. Reitz, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Baldwinsville Central School District (“respondent”) to suspend her son, S.C.  The appeal must be dismissed.

S.C. was a student at respondent’s C.W. Baker High School in September 2005.  He was assigned to work with several female students on a group project in Social Studies class.  On September 13, H.B., one of the group members, approached the teacher and asked that her seat be moved away from S.C. because he had been using vulgar language.  The following day, the teacher moved S.C.’s seat to the front of the classroom.

H.B.’s mother later called one of the high school guidance counselors to report that S.C. had threatened and intimidated her daughter.  On Friday, September 16, the guidance counselor reported the parent’s concerns to the assistant principal responsible for S.C.  That afternoon the assistant principal spoke with H.B. by telephone and spoke in person with K.C., another female student in S.C.’s Social Studies class.  The assistant principal states that the students told him S.C.’s language to H.B. was obscene, threatening and harassing and had been “going on for a couple of days.”  The assistant principal told S.C. about the complaint that afternoon and said he would continue to investigate on the following Monday.

The parties disagree about many aspects of the events that followed.  The assistant principal spoke with petitioner by phone after school hours on Friday, September 16.  He states that he told petitioner he would continue to investigate and that disciplinary action would likely result if the students made written statements describing S.C.’s conduct.  Petitioner alleges that the assistant principal told her the principal had already decided to suspend S.C. for five days beginning Monday if one of the complaining students signed a written statement.  She also asserts that she advised the assistant principal that she was entitled to a conference with the principal before a suspension could be imposed. 

On Monday, September 19, the assistant principal met with S.C., who gave him the names of three students to interview.  The assistant principal assigned S.C. to the in-school planning room for the day to “avoid any interference in the investigation” and because “he was very agitated by the allegations against him” and “needed time to calm down.”  The assistant principal states that he then obtained written statements from H.B. and K.C. and the three male students identified as witnesses by S.C. He noted that H.B. and K.C. were still troubled by the comments.

In her written statement, H.B. repeated the language S.C. used to her and K.C. on September 13.  She said she wasn’t sure which of them S.C. called one name and mentioned that S.C. continued to question her about why she told the teacher about his comments.  In her written statement, K.C. asserted that S.C. had called H.B. a number of vulgar names, used a vulgar phrase to express his anger and “told her to shut up a lot whenever she talked.” She stated that while she did not hear other specific language, the argument between the two went on for at least three days.  The assistant principal also questioned L.C., a third female student, who said she did not hear S.C.’s comments.  He states that he did not have L.C. prepare a written statement.

One of the boys identified by S.C. stated that he was too far away to hear anything.  Another said he heard S.C. blurt out a person’s name but could not hear anything said in a normal conversational tone.  The third also heard S.C. blurt out a person’s name.  He stated that the girls were annoyed with S.C., but that he did not know why.

The assistant principal took all the written statements to the principal and reviewed his investigation and findings with her.  He informed her that the three witnesses identified by S.C. did not establish that he did not make the comments, only that they did not hear much of what he said.  The principal concluded that a five-day suspension was warranted.  The assistant principal states that he reviewed two prior incidents involving S.C. with the principal.  One resulted in a mediation session between S.C. and another student who alleged that S.C. had threatened and intimidated him.  The principal concluded that S.C.’s history and the current circumstances justified an immediate suspension, because S.C.’s continued presence could disrupt the educational process or pose a danger to other students.  She planned to hold a conference with petitioner as soon as possible following the suspension.  The assistant principal telephoned petitioner at about 10 a.m. to advise her that S.C. was being suspended immediately.  He alleges that they agreed to hold a conference at 1 p.m. that day.

A written notice of suspension was delivered to petitioner’s home before 1 p.m. that day.  It stated that S.C. “was” suspended for 5 days for behavior “in violation of school rules and dangerous and/or disruptive to students or others.”  It identified the offenses as “Threatening Language” and “Sexual Harassment toward female students” and quoted the specific words and phrases the students alleged S.C. had used. The notice was signed by the principal and the assistant principal, to whom S.C. was required to report upon his return to school.

Petitioner and her husband allege that they were unable to attend the 1 p.m. conference on September 19 due to car trouble.  Respondent contends that the parents were present on school property but chose not to make themselves available for a conference.  In any event, the conference was rescheduled for Friday, September 23, the final day of S.C.’s suspension.  The parties disagree about what occurred on that date.  Petitioner contends that she was initially shown L.C.’s written statement and that when she offered a print-out of an instant messaging conversation between L.C. and S.C. the principal refused to consider it.  The principal contends that because L.C. did not have information about the incident she did not prepare a written statement.  The principal asserts that the document petitioner sought to introduce therefore was irrelevant.

The assistant principal was present for the beginning of the conference.  He showed petitioner the students’ written statements and reviewed his investigation and conclusions before leaving for another meeting.  Petitioner and her husband then asked to speak with the complaining witnesses.  The principal initially resisted.  She states that she was reluctant to bring them in because of petitioner’s aggressive manner, but ultimately did so.  Petitioner alleges that the principal stated there was no need to call witnesses because “she was clear in her own mind that [S.C.] committed the misconduct” and that the suspension was warranted.

The principal ultimately brought each of the female students to the conference.  The principal states that petitioner was “extremely aggressive” in her questioning and that she felt “obliged to intervene. . .to maintain some control and to protect” the students.  Petitioner alleges that the principal coached the students prior to permitting her to question them; the principal states that she simply told the students to tell the truth.  The Social Studies teacher also attended part of the conference and stated that she had not been aware of the exact language S.C. used.  She also stated that class had not been disrupted.  At the conference, petitioner also asserted that the language her son was accused of using did not violate the cited provisions of the code of conduct.

The principal asserts that no information was presented at the conference to warrant modification of the suspension previously imposed.  She concluded that S.C. had made threatening, inappropriate and obscene comments to the other students in violation of the district’s code of conduct.  S.C. returned to school the following Monday and was required to sign an “in-school planning contract” before attending classes.  In the contract he stated that he did not say the things he was suspended for saying but that he agreed not to talk to “that girl” who accused him and that he would not use such language in the future.

By letter dated October 5, 2005, S.C.’s father asked the principal for a written statement of her decision.  She responded by letter dated October 6, 2005 in which she advised S.C.’s parents of their right to appeal the suspension to the Board of Education.  They submitted a written appeal to the Board dated October 21, 2005.  Apparently the superintendent conducted a review of the matter.  By letter dated November 1, 2005, she upheld the principal’s determination.  Petitioner then made a written request to the Superintendent to present the appeal to respondent, which upheld the determination by letter dated December 12, 2005.  This appeal ensued.

Petitioner alleges that S.C. was denied his right to due process.  She contends that the district’s code of conduct provides for progressive discipline and does not authorize a suspension when a teacher has remedied a problem in the classroom.  She also asserts that the assistant principal exceeded his authority, the notice of suspension lacked specificity and that the principal improperly suspended S.C. before holding a conference, improperly limited her questions to complaining witnesses, coached the complaining witnesses, showed a predisposition to suspend S.C., refused to discipline one of the complaining witnesses for using the same language S.C. was accused of using and imposed a penalty disproportionate to the offense.  Petitioner also argues that the charges against her son were not supported by evidence.  She asks that the suspension be annulled and expunged from S.C.’s record.

Respondent asserts that substantial evidence supports the principal’s conclusion that S.C. made lewd, threatening and obscene comments to female students over a period of time, that the penalty was proportionate to the offense, that the circumstances warranted immediate suspension before a conference could be held and that the principal acted properly to protect witnesses from abusive and intimidating questioning by petitioner.

Petitioner’s assertion that the district’s code of conduct does not permit suspension when a teacher has addressed a behavior problem is incorrect.  The code does state that “[s]tudent misconduct should be handled first by the classroom teacher.  When a teacher’s efforts to resolve the behavioral problem are unsuccessful, District authorities may use a range of possible interventions in response to the misconduct.”(VII[A][1])  However, this statement is contained in a section of the code dealing with disciplinary responses to student misconduct other than suspension.  Transfer and suspension are addressed in another section.  Moreover, the code further states that “[n]othing in this Code abridges the right and responsibility of a principal to suspend a student when, in the judgment of the principal, the student’s conduct warrants the same.” (XVI[C])  In addition, Appendix E of the Code, which specifies the minimum penalties for various classes of infractions committed by high school students states that the “building principal has the discretion to suspend students for one-to-five [sic] days for infractions of school rules.”  Thus, the principal was authorized to impose the suspension (seeAppeal of T.W. and P.K., 46 Ed Dept Rep 154, Decision No. 15,472).

Petitioner’s claim that the principal lacked authority to suspend her son before conducting an informal conference also is incorrect.  In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of R.F., 43 Ed Dept Rep 206, Decision No. 14,972). The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil'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 must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

Here, the principal determined that, in light of S.C.’s history, the nature of the alleged offense, and the reactions of the female students, S.C. presented a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  She made this judgment on Monday September 19, when the assistant principal first informed her of S.C.’s alleged misbehavior.  It is also significant that S.C. was so agitated on Monday morning that the assistant principal sent him to the in-school planning room for the day.  The principal’s determination that S.C. posed a danger or threat of disruption was not outweighed by the fact that S.C. had attended school the prior Wednesday through Friday without incident, since he was not aware of the other students’ formal complaints at that time (compare Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064).  I note that this determination could have been addressed more clearly in conversations with petitioner and in the notice of suspension, which simply stated that S.C.’s behavior violated school rules and was “dangerous and/or disruptive to students or others.”  However, the governing law and regulations do not prescribe a specific form of notice of an immediate suspension and any lack of clarity here does not require me to annul the suspension.

     Petitioner’s claim that the written notice of suspension was flawed because it did not name the complaining students or list the time and place where the alleged comments were made also fails.  The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of a Student with a Disability, 39 Ed Dept Rep 427, Decision No. 14,278).  Here, the notice stated that S.C. was charged with using threatening language and sexually harassing female students.  The notice went on to quote the specific language S.C. was alleged to have used.  This was sufficient to permit him to prepare to present his side of the story at the conference (seeAppeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146). Indeed, S.C. was able to identify three witnesses from the Social Studies class who he felt would support his version of the events [even before he received the written notice].  Even if S.C. and petitioner erroneously assumed that a third female student made allegations against him, it did not hamper their defense.

     As set forth above, students and their parents are entitled to ask questions of complaining witnesses at informal conferences.  There should have been no question that petitioner was within her rights to speak with the students who alleged that S.C. threatened and harassed them.  Those rights do not extend, however, to an opportunity to question L.C., who had advised staff she had no information about the incident.  Nor do they extend to intimidating or harassing student witnesses.  While the record does not contain details, the principal states that she curtailed petitioner’s questioning only when it was irrelevant or inappropriate.

    Petitioner also objects to the assistant principal’s refusal to supply her with copies of the female students’ written statements before the conference was held.  However, she fails to cite any authority demonstrating she was entitled to that information in advance.  Nor does she present persuasive evidence that delivery of the statements at the conference, rather than before, deprived her of her right to question the students (seeAppeal of Reeves, 37 Ed Dept Rep 271, Decision No. 13,857).

    Petitioner makes a number of other arguments in support of her contention that S.C.’s suspension lacked fundamental fairness.  None of these claims warrant annulling the suspension.  The principal denies petitioner’s allegation that she coached witnesses or declined to call witnesses because her mind was made up before the informal conference.  The principal’s refusal to punish one of the female students who allegedly used language similar to S.C.’s does not invalidate his suspension (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 14,451).

     The 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 (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107).  S.C. was charged with making threatening statements.  The code of conduct defines “threats” as “credible, focused threats of violence or harm. . .which cause the other person to believe his or her life, safety or property is in danger. . . .”  The two female students stated that S.C. used a vulgar phrase to communicate his anger, including that he would “rip” them.  Petitioner alleges that this phrase is simply a colloquialism for an angry lecture and does not actually threaten physical harm.  However, the two female students said they did feel threatened by S.C.’s words.  Thus, the principal could reasonably construe the language as a threat.  In any event, even if S.C.’s language did not constitute a threat, it did meet the definition of sexual harassment, which also justifies the suspension.

     The code of conduct defines sexual harassment as “threatening bodily harm or by repeatedly tormenting another person based on gender or sexual orientation.  Sexual harassment may take the form of comments, jokes, name calling. . .”  First, petitioner alleges that S.C. did not “repeatedly” torment the female students because he only used the foul language on one day.  This is not consistent with K.C.’s statement that S.C. mistreated H.B. for at least 3 days or H.B.’s statement that S.C. continued to question her about reporting his conduct to the teacher.  Petitioner also alleges that the language S.C. used is common among students and therefore could not be offensive.  S.C.’s word included vulgar epithets based on gender.  His language demonstrated both hostility and disrespect.  Such language is grossly inappropriate and has no place in our schools.  Petitioner argues that the girls’ statements were inconsistent as to which of them was the target of S.C.’s words.  However, both girls heard the words and acknowledged being disturbed by them.  Accordingly, there was sufficient evidence before the principal to support her conclusion that S.C. violated the code of conduct.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).  That standard has not been met here.  Indeed, the district’s code of conduct provides that a suspension of 3 to 5 days is appropriate for high school students who engage in sexual harassment.  Petitioner’s allegation that the principal improperly relied on S.C.’s anecdotal record in assessing the penalty is not supported by the record.  It appears that S.C.’s history was considered only in determining whether an immediate suspension was warranted because he posed a threat of disruption to the educational process or a danger to other students.

     I have considered the parties’ remaining contentions and find they lack merit.