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Decision No. 15,869

Appeal of F.H. and S.H., on behalf of their son M.H., from action of the Board of Education of the Shoreham-Wading River Central School District regarding student discipline.

Decision No. 15,869

(February 13, 2009)

Smith, Finklestein, Lundberg, Isler, and Yakaboski, LLP, attorneys for petitioners, Jonathan M. Marmo, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Tracy A. Haas and Vanessa M. Sheehan, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Shoreham-Wading River Central School District (“respondent”) to uphold the suspension of their son, M.H.  The appeal must be dismissed.

M.H. was 12 years old and attended respondent’s middle school during the 2007-2008 school year.  On May 15, 2008, two female middle school students informed the middle school assistant principal that M.H. and another boy taunted and intimidated them with sexually explicit insults and gestures while on the school bus.  The assistant principal and principal interviewed the girls, who detailed the sexually explicit statements and gestures which allegedly persisted over several days.  The principal and assistant principal also interviewed another student witness as well as the other student who was allegedly involved in the behavior.  That student admitted the conduct and was suspended for five days.

On May 20, 2008, the first day he was in school after the incident, M.H. was interviewed by the assistant principal and principal.  M.H. told them he was unsure of what he said to the girls and denied the behavior but admitted calling one of the girls “a ... [expletive].”  That same day, petitioners received a letter from the principal advising them that M.H. would receive an out-of-school suspension for five days on May 21, 22, 27, 28 and 29, 2008.  The conduct for which he was suspended was described as repeatedly using vulgar words and making sexual gestures toward two girls despite numerous requests to stop.  The letter advised petitioners that upon request, they had the right to an immediate informal conference with the principal where they could present M.H.’s version of the events and ask questions of the complaining witnesses.  The principal also telephoned M.H.’s mother and discussed the incident and suspension.

Early on the morning of May 21, 2008, the principal again telephoned M.H.’s mother and scheduled an informal conference for 9:00 a.m. that day.  Both petitioners met with the principal and objected to the suspension while M.H. waited outside her office.  After the conference, petitioners were notified that the principal would impose the five-day suspension as described in the May 20, 2008 letter.  M.H. was provided with 10 hours of home instruction during the suspension.

On June 4, 2008, petitioners appealed the suspension.  By letter dated June 18, 2008, the superintendent notified petitioners that respondent had upheld the suspension.  This appeal ensued.

Petitioners contend that M.H. was denied an opportunity to present his version of the events and that petitioners were denied their request for the names of the complaining witnesses and an opportunity to question them.  Petitioners contend that the principal imposed the five-day suspension in retaliation for their zealous defense of M.H. when he was previously suspended for two days for fighting with another student.  Petitioners seek expungement of their son’s records.

Respondent contends that the five-day suspension was imposed in compliance with Education Law §3214, Commissioner’s regulations, the district’s code of conduct and all applicable policies.  Respondent argues further that petitioners’ son received adequate due process. 

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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).  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]). 

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioners do not challenge the adequacy of the written notice informing them of their right to request an informal conference with the principal where they could present their son’s version of the events and ask questions of the complaining witnesses.  Rather, the only issue is whether the informal conference was conducted in a manner that afforded petitioners due process.  Respondent submitted evidence in the form of affidavits to show that the district complied with the informal conference requirements of the Education Law and Commissioner’s regulations.  Specifically, the principal stated in her affidavit that petitioners did not ask to speak with any witnesses or to have their son, who waited outside the principal’s office, participate in the conference.  Both the principal and assistant principal affirmed that they interviewed M.H. on May 20, 2008, at which time he said he was unsure of what he had said to the girls but admitted using profanity towards one of the girls.  Significantly, petitioners failed to submit a reply to the allegations and affirmative defenses in respondent’s answer.  Thus, on the record before me, I find that petitioners have not met their burden of proving the facts upon which their claims are based.