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Decision No. 15,666

Appeal of L.O. and D.O., on behalf of their son A.O., from action of the Board of Education of the Frontier Central School District regarding student discipline.

Decision No. 15,666

(September 20, 2007)

Law Office of Andrew K. Cuddy, attorneys for petitioners, Andrew K. Cuddy, Esq., of counsel

Hodgson Russ, LLP, attorneys for respondent, David A. Farmelo, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the suspension of their son, A.O., by the Board of Education of the Frontier Central School District (“respondent”).  The appeal must be dismissed.

On April 11, 2006, A.O.’s car was parked in respondent’s high school parking lot.  On that day, respondent’s high school principal and assistant principal received a tip that there might be drugs in A.O.’s car.  They removed A.O. from class and asked if they could search his car, to which he replied “fine.”  A.O. accompanied the principal and assistant principal to the car and opened it for them.

The search uncovered a small quantity of marijuana, small plastic bags, a digital scale and a pill.  The principal telephoned petitioner D.O., who came to school that afternoon.  Petitioner spoke with the principal about the incident, who informed him that A.O. would be suspended for five days.  As petitioner was leaving the school, the assistant principal handed him a five-day suspension notice, which described the incident leading to the suspension as “Drugs.”  A.O. was suspended for five days, April 12 and 24-27, 2006.

By notice dated April 11, 2006, the superintendent informed A.O. that a hearing would be held on April 25, 2006 and that he was charged with “acts of conduct which endangers the safety, morals, health and welfare of other students,” specifically “[t]hat on Tuesday, April 11, 2006 a quantity of marijuana, a large number of small plastic bags and an electronic scale were found in a vehicle belonging to [A.O.], while said vehicle was parked in the Frontier High School parking lot.”

At the superintendent’s hearing, A.O. admitted to possessing marijuana, small plastic bags and an electronic scale.  The hearing officer then asked the principal to recommend a punishment.  He recommended a suspension for the remainder of the 2005-2006 school year and a portion of the 2006-2007 school year.  However, the hearing officer recommended to the superintendent that A.O. be suspended for the remainder of the school year, banned from attending any school-related activities during the term of the suspension and provided home instruction for courses needed to meet graduation requirements.  On April 25, 2006, the superintendent adopted the hearing officer’s recommendations in full.  Petitioners appealed this decision to respondent, which affirmed the suspension, except that it allowed home instruction in all of A.O.’s courses.  This appeal ensued.

With respect to the five-day suspension, petitioners contend that there was no timely notification, that there was no notification of an informal conference with an opportunity to question witnesses and that the charges were not specific.  With respect to the superintendent’s hearing, they allege that they were denied several rights: the right to representation at the hearing, the right to question witnesses and the right to present witnesses.  They also allege that A.O. was denied his right not to testify at the hearing.  Additionally, they claim that the findings of fact were vague, that the search of A.O.’s car was illegal and that the punishment imposed was excessive, and ask that A.O.’s record be expunged.

Respondents claim that A.O. was provided with sufficient due process regarding the five-day suspension and at the superintendent’s hearing.  They also allege that the search of A.O.’s car was legal and that the punishment imposed on him was reasonable.  Finally, they contend that the matter is moot, as A.O. has already served his suspension.

Preliminarily, I find that because the student has served the suspension, the appeal is moot except to the extent that petitioners seek expungement of his records (Appeal of M.S., 44 Ed Dept Rep 478, Decision No. 15,237; Appeal of a Student with a Disability, 44 id. 136, Decision No. 15,124; Appeal of a Student with a Disability, 43 id. 372, Decision No. 15,021).

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]).

The written notice of a short-term suspension 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 (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of R.F., 43 id. 206, Decision No. 14,972).

In this case, petitioner D.O. was called to the school and spoke with the principal and the assistant principal before the five-day suspension was imposed on A.O.  The principal and assistant principal had conducted the search of A.O.’s car and were the complaining witnesses in this case.  Thus, petitioner D.O. was given an opportunity to meet with the witnesses against A.O. before the suspension was imposed.  Petitioner D.O. received the letter notifying him of his son’s suspension by hand delivery as he left the school on the day of the incident, which was the day before the suspension was in effect.  Under these circumstances, I find that the notice requirements were satisfied.

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).

The notice of the five-day suspension referred to “Drugs” as the reason for the suspension.  While this is not a detailed description, I note that in this case petitioner D.O. went to A.O.’s school the day of the incident, spoke with the principal and assistant principal and was informed of the charges against his son.  Additionally, the notice of the superintendent’s hearing included a complete description of charges against A.O.

Petitioners’ allegations that A.O. was denied his right to be represented by counsel at the superintendent’s hearing and to refrain from testifying is unfounded.  The notice of charges for the superintendent’s hearing clearly states that petitioners had the right to be represented by counsel, and that A.O. had the right to refrain from testifying at the hearing.

Petitioners also challenge the finding of guilt based solely on A.O.’s admission of the misconduct.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (seee.g.Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960; Appeal of P.K., 41 id. 421, Decision No. 14,733).  A.O. was accused of possessing marijuana in his car while the car was parked on school property, he admitted this at the superintendent's hearing.  Accordingly, I find no basis to overturn respondent's determination.

Petitioners’ claim that their son’s rights were violated by the search of his car is without merit.  The record reflects that A.O. explicitly consented to the search and opened the car for the principal and assistant principal when asked.  Accordingly, there is no basis for this claim.

Finally, petitioners’ allegation that the punishment is excessive is also without merit. 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).  Based upon the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in imposing a penalty of suspension from school and school activities for the remainder of the school year.