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Decision No. 15,803

* Subsequent History: Matter of Bobolia v Board of Educ. of Hendrick Hudson Cent. School Dist.; Supreme Court Albany County; Judgment dismissed petition to review; July 15, 2009. *

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Hendrick Hudson Central School District regarding student discipline.

Decision No. 15,803

(August 1, 2008)

Kuntz, Spagnuolo & Murphy, P.C., attorneys for respondent, Leah L. Murphy, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, Aileen Noonan, Esq., of counsel

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

In the fall of 2006, petitioners’ son was a 16-year-old student who attended tenth grade at respondent’s Hendrick Hudson High School.  On Wednesday, November 22, 2006, petitioners’ son left his sixth period English class without permission and was found in the boys’ bathroom by a school security guard.  He was escorted to the office of the assistant principal who had him assessed by the school nurse.  The assistant principal then questioned the student in the presence of the school resource officer, a New York State Trooper.  The student admitted smoking marijuana that morning.  His pockets and backpack were emptied but no contraband was found.

The assistant principal telephoned the student’s father and asked that he come to the high school to discuss the situation.  Petitioners met with the assistant principal and agreed that they would take their son home during the ninth period, or around 1:25 p.m., with approximately 45 minutes left in the school day.  The assistant principal then met with the principal, who determined that the student’s conduct constituted a threat of harm such that he should receive a five-day out-of-school suspension immediately following the Thanksgiving break.  The principal wrote a letter to petitioners informing them of the suspension, to run from Monday, November 27 through Friday, December 1, 2006, and offering to meet with them in an informal conference.  The letter was hand-delivered to petitioners’ mailbox at approximately four o’clock the afternoon of November 22, 2006.

On Monday November 27, 2006, the superintendent gave petitioners notice of a hearing on November 30, 2006 to determine whether the student should receive a longer suspension for being under the influence of marijuana during school hours.  The hearing was rescheduled to December 4, 2006 and then cancelled after an agreement was reached with petitioners through their attorney to convene respondent’s Committee on Special Education (CSE) to review the student’s program.  As a result, no superintendent’s hearing was held, no further suspension was imposed, and the CSE was not required to make a manifestation determination.  Petitioners’ December 29, 2006 appeal of their son’s five-day suspension was denied by respondent at its meeting on January 24, 2007.  This appeal ensued.

Petitioners appeal the five-day suspension and seek expungement of their son’s records.  Petitioners contend that their son was illegally searched and questioned by a police official on school property without their consent and without following procedures required by respondent’s code of conduct, including Miranda Warnings of his right to remain silent and to request an attorney.  Petitioners ask that respondent be admonished for violating their son’s rights to be free from illegal search and seizure.  Petitioners also contend that their son was suspended by the assistant principal who lacks that authority.  Petitioners contend further that none of the procedures were followed by respondent for a suspension of five days or less.  Petitioners also request an order admonishing respondent for scheduling a manifestation meeting of the Committee on Special Education prior to a determination of guilt on the disciplinary charges.

Respondent contends that the five-day suspension was proper.  Respondent denies that a police investigation occurred and asserts that the school resource officer was present only as a third-party witness during questioning and search of the student, consistent with the code of conduct.  Respondent denies that the school resource officer conducted a police interrogation that required Miranda warnings.  Respondent also contends that the five-day suspension was imposed by the principal, after consultation with the assistant principal.  Respondent asserts that written notice was hand-delivered to petitioners on November 22, 2006, the same day of the incident and that petitioners did not avail themselves of the opportunity for an informal conference prior to imposition of the suspension on November 27, 2006.  Lastly, respondent contends that petitioners’ claims with regard to a superintendent’s hearing and manifestation determination are moot because neither occurred and no suspension was imposed beyond the initial five days. 

Initially, I must address respondent’s objection to petitioners’ reply.    A reply shall be served within 10 days after service of the answer to which it responds unless an extension is granted (8 NYCRR §§275.14[a] and 276.3).  Petitioners were granted an extension until April 18, 2007 but did not serve their reply on respondent’s counsel until April 20, 2007.  In addition, petitioners’ reply was not verified as required by §275.5 of the Commissioner’s regulations.  Accordingly, I have not considered petitioners’ unverified and untimely reply.

The principal of the school where the student attends has the power to suspend a student for a period not to exceed five school days (Education Law §3214[3][b][1]).  In this case, the principal of the high school where the student attended authored the November 22, 2006 letter to petitioners notifying them of their son’s suspension.  In his affidavit, the principal stated that he was in the high school on November 22, 2006 and was informed during sixth period that petitioners’ son left class and could not be located.  He affirmed that he then encountered petitioners’ son near a boy’s bathroom and directed a high school security guard to take the student to the assistant principal’s office.  The principal further stated that he instructed the assistant principal to question petitioners’ son and possibly conduct a search of his belongings, if necessary.  The principal affirmed that he met with the assistant principal at the end of the day, discussed his investigation, reviewed the code of conduct, and then wrote a letter informing petitioners of the suspension and their right to an immediate informal conference. Thus, on the record before me, I find that the suspension was imposed by the principal, not the assistant principal.    

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 (see e.g. Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145). 

Petitioners admit receiving written notice on November 22, 2006 that their son would be suspended from November 27 through December 1, 2006.  However, petitioners claim that their son’s suspension actually commenced the afternoon of November 22, 2006, following their meeting with the assistant principal when they took their son home.  The assistant principal denies that any suspension occurred on November 22, 2006, stating instead that he consented to petitioners’ request that the student leave 45 minutes early that day because it was in the student’s best interest and for the health and safety of other students.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  On the record before me, petitioners have not established that the early excusal of the student constituted a disciplinary suspension from instruction on November 22, 2006.  Therefore, I find that the suspension did not commence until November 27, 2006, and thus, the notice of suspension was timely.

Petitioners allege that the school resource officer, a State Trooper, questioned and searched their son in violation of respondent’s code of conduct.  Petitioners’ son stated in an affidavit that the school resource officer repeatedly questioned him and directed the principal to search him and his backpack and tell him to empty his pockets. 

Respondent’s code of conduct provides that before police officials are permitted to question or search any student, the building principal or designee must first try to notify the parents to allow them an opportunity to be present during the police questioning or search.  The code prohibits police questioning or search of a student if the student’s parent cannot be contacted beforehand.  The code further provides that students who are questioned by police officials on school property are entitled to the same rights they would receive outside the school, including being informed of their right to remain silent and to request the presence of an attorney. 

In this case, respondent maintains that the student was questioned as part of the school’s investigation and that such questioning was solely for the purpose of its investigation and possible student discipline.  Respondent further denies that the school resource officer questioned or searched the student.  In support of its position, respondent submitted affidavits from the school resource officer and assistant principal which described the questioning and search as part of a routine school discipline procedure, not a formal police investigation or interrogation by a police official who entered school property for that purpose.  While respondent admits that the school resource officer was present as a third-party witness during the student’s questioning, and commented at one point that the student was “on something”, there is no indication that the assistant principal was acting under his direction or that the assistant principal was acting to elicit evidence of criminality on behalf of the police.    Thus, on the record before me, I find that petitioners have not met their burden of proving that respondent violated its code of conduct by the actions of the school resource officer.   

Finally, I find petitioners’ claims to be moot regarding a manifestation meeting and superintendent’s hearing because no such meeting or hearing was held.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc. et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).

I have considered petitioners’ remaining contentions and find them without merit.