Appeal of M.H. and E.H., on behalf of M.J.H., from action of the Board of Education of the Williamsville Central School District regarding student discipline.

Decision No. 15,694

(December 12, 2007)

Hogan & Willig, PLLC, attorneys for petitioners, Diane R. Tiveron and Megan E. Misiti, Esqs., of counsel

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

MILLS, Commissioner.--Petitioners appeal the suspension of their son, M.J.H., by the Board of Education of the Williamsville Central School District (“respondent”).  The appeal must be dismissed.  

During the 2006-2007 school year, petitioners’ son was 15 years old and attended tenth grade at respondent’s high school, where he played on the junior varsity basketball team.  After a home basketball game on December 19, 2006, the players went into the locker room and showered.  A teammate used a cellular telephone camera to take a nude photograph of M.J.H., showing the area between his waist and knees.  On February 2, 2007, the photograph was sent to the junior varsity basketball coach.  On February 6, 2007, M.J.H. was called into the principal’s office and questioned by the principal and assistant principal.  Following this initial questioning, M.J.H.’s mother, employed at the high school, was called to the principal’s office to discuss the situation and was present for additional questioning of her son by the principal and assistant principal.  Later that afternoon, the principal spoke to M.J.H.’s father by telephone and met with him briefly at the high school.

On February 7, 2007, M.J.H.’s father met with the principal and assistant principal who gave him a letter from the principal proposing a two-day suspension, on February 8 and 9, 2007, during which the student would be assigned to attend an alternative program at another high school in the district.  M.J.H.’s father read the letter at the meeting.  The letter included notice of petitioner’s right to request an informal conference and to question a witness to the incident, as well as a description of the student’s conduct requiring discipline, i.e. allowing team members to take his picture in the shower nude in violation of respondent’s Code of Conduct.

On February 9, 2007, petitioners received a letter from the principal dated February 8, 2007 confirming that the suspension would be implemented on February 8 and 9, 2007.  M.J.H. served the suspension on those dates.  By letter to the principal dated February 12, 2007, M.J.H.’s father stated that he agreed to let the suspension stand as a learning experience for his son, but complained of the lack of a school policy for use of cellular telephones and cameras and requested expungement of the discipline notice and correspondence related to the suspension from his son’s record.  He sent another letter on March 4, 2007, asking the superintendent to remove a particular letter from his son’s file that stated he was “a willing participant in a lewd/inappropriate sexual expression”. 

On March 12, 2007, the Superintendent informed petitioners that no such letter was placed in the student’s file.  The Superintendent’s correspondence also stated that the suspension was appropriate, and that the discipline notice and correspondence included factual statements that were consistent with the student’s own admissions to the principal and assistant principal that he posed for the photograph as a “joke”.  Petitioners commenced this appeal on April 11, 2007. 

Petitioners seek an order that the suspension was improper and that references to the suspension be expunged from their son’s school record.  Petitioners contend that M.J.H. was not an active or willing participant in the incident because he did not pose for the photograph, did not ask that it be taken, and requested that it be deleted.  Petitioners contend that insufficient opportunity was provided to request an informal conference because notice was received at approximately 4:00p.m. on February 7, 2007 and the suspension began the next morning.  Petitioners allege that their son should not have been disciplined for being unclothed because he had just finished showering after the basketball game and his conduct did not differ from that of any other student who showers after a gym class or sporting event.

Respondent contends that the appeal should be dismissed as untimely and because the suspension was valid.  Respondent contends that petitioners received sufficient notice of the suspension and were provided two informal conferences with the principal and assistant principal on February 6 and 7, 2007, prior to the suspension.  Respondent alleges that M.J.H. admitted to the principal and assistant principal when questioned on February 6, 2007, that he willingly participated by posing for the photograph.  Petitioners did not submit a reply to respondent’s allegations and affirmative defenses. 

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).  Petitioners received notice of the suspension on February 7 and February 9, 2007 and were aware that their son served the suspension on February 8 and February 9, 2007.  Petitioners, however, did not commence their appeal until April 11, 2007, more than 30 days later.  While petitioner sought reconsideration of respondent’s decision, a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012; Appeal of Williams, 42 id. 260, Decision No. 14,846).  Consequently, the appeal is untimely. 

Even if it were timely, the appeal would be dismissed on the merits.  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).  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).  Both the principal and assistant principal affirm that petitioners’ son admitted to posing for the photograph and being a willing participant.  Affidavits by the principal and assistant principal state that these admissions were made to them on February 6, 2007 and repeated when the student’s mother joined the meeting.  Accordingly, I find no basis to overturn the suspension or expunge it from the student’s record.

THE APPEAL IS DISMISSED.

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