Appeal of R.N.T. and M.T., on behalf of their son R.T., from action of the Board of Education of the Peru Central School District regarding student discipline.

Decision No. 15,702

(December 21, 2007)

Tabner, Ryan and Keniry, LLP, attorneys for petitioners, Tracy L. Bullett, Esq., of counsel

Stafford, Owens, Curtin & Trombley PLLC, attorneys for respondent, Jacqueline M. Kelleher, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the suspension of their son, R.T., by the Board of Education of the Peru Central School District (“respondent”).  The appeal must be sustained.

On May 12, 2007, R.T., then a 17 year-old junior, attended the Peru High School junior prom via limousine along with several other students.  According to the principal, who was present, several students from that limousine were so intoxicated at the prom that their parents had to be called, and several ambulances had to be summoned.

On Tuesday, May 15, 2007, the athletic director spoke about alcohol use at the prom to all the athletic teams whose members attended the prom.  The athletic director allegedly reported to the principal that R.T. approached her and admitted that he had consumed alcohol before the prom.

On May 15, 2007, the principal met with R.N.T and R.T.  By letter dated May 15, 2007, the principal suspended R.T. for five days from May 15 to May 21, 2007, for “being under the influence of alcohol, while at a school function (the Junior Prom)” in violation of the Student Handbook and the District School Conduct and Discipline Policy.

By letters dated May 15 and May 16, 2007, petitioners appealed the suspension to the superintendent.  By letter dated May 17, 2007, the superintendent denied petitioners’ appeals.  Thereafter, petitioners appealed to respondent.  By letter dated June 13, 2007, the district clerk informed petitioners that on June 12, 2007, respondent upheld the superintendent’s determination.  This appeal ensued.

Petitioners assert that R.T. did not use alcohol and was not under the influence of alcohol at the prom.  They state that while others at the prom were questioned, subjected to “field sobriety tests,” and even removed from the prom, no one approached or questioned R.T.  They contend that at the May 15, 2007 meeting, the principal stated that an administrator observed R.T. at the prom, but did not approach or question him.  However, the principal refused to provide the name of the alleged administrator. Petitioners contend, therefore, that respondent violated the due process requirements of Education Law §3214(3)(b)(1) and §100.2(l)(4) of the Commissioner’s regulations because they could not confront the complaining witness.  In addition, they assert that the written notice of R.T.’s suspension, dated May 15, 2007, failed to inform them of their right to confront witnesses or to have an informal conference in accordance with Education Law §3214(3)(b)(1).  Petitioners request that the suspension be reversed and expunged from R.T.’s record.

Respondent asserts that the suspension was appropriate and lawful and that R.T. was accorded his due process rights.  The principal asserts that R.T. violated the District’s Code of Conduct in that he admitted consuming alcohol prior to the prom.

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 purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed 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 or her original decision to suspend was correct or should be modified (Appeal of R.M. and L.M., 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).

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).

In this case, R.N.T and R.T. met with the principal on May 15, 2007 before the suspension was imposed.  However, although the principal was present at the prom, she did not personally observe or speak with R.T. that night.  Accordingly, she was not the complaining witness (compareAppeals of C.C. and R.C., 47 Ed Dept Rep ___, Decision No. 15,700; Appeal of C.C. and R.C., 47 id. ___, Decision No. 15,701).  In addition, she refused to divulge the name of the administrator who allegedly observed R.T. under the influence, even though R.N.T specifically requested that information.  On these facts, I must conclude that R.N.T and R.T. were denied the opportunity to question the complaining witness against R.T. before the suspension was imposed.  Accordingly, the suspension must be annulled (seee.g., Appeal of Deborah P., 39 Ed Dept Rep 433, Decision No. 14,279).

In addition, I note that, although an affidavit of service reveals that the principal’s May 15, 2007 suspension letter was hand-delivered to R.N.T at his home at 6:00 p.m. on May 15, 2007, such delivery nonetheless occurred after the suspension was already in effect and thus would also require annulment of the suspension (seeAppeal of V.R. and C.R., 43 Ed Dept Rep 99, Decision No. 14,934).

     In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the five-day suspension of petitioners’ son from May 15 to May 21, 2007 be expunged from his record.

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