Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Sauquoit Valley Central School District regarding student discipline.

Decision No. 15,986

(September 10, 2009)

Anthony J. LaFache, Esq., attorney for petitioner

The Law Firm of Frank W. Miller, attorneys for respondent, Charles E. Symons, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the suspension of her son by the Board of Education of the Sauquoit Valley Central School District (“respondent”).  The appeal must be sustained in part.

In January 2005, petitioner’s son was a 17-year-old learning-disabled student attending respondent’s high school in the morning and a program at the Oneida-Herkimer-Madison Board of Cooperative Educational Services (“BOCES”) in the afternoon.

On January 5, 2005, as petitioner’s son was being questioned with respect to the alleged possession of an illegal substance, he agreed to be searched if his mother was present.  Shortly after petitioner arrived, at her direction the student grabbed his book bag, ran out of the office and left school grounds.  A notice of suspension dated January 5, 2005 indicates that the student was suspended the afternoon of January 5, and on January 6, 7, 10 and 11 for insubordination.  On January 7, 2005, petitioner requested an informal conference with the principal.

By separate letter dated January 5, 2005, the superintendent notified petitioner that a hearing was scheduled for January 11, 2005 to determine whether her son should be suspended for a period in excess of five days on the following charge:

[The student] was insubordinate and endangered the health, safety and welfare of himself and others on January 5, 2005.  Specifically, [the student] refused to cooperate when asked if he possessed an illegal substance.  [The student] denied possessing any illegal substance and stated that he would not assist in the investigation process unless his mother was present.  He also stated that he was refusing to attend the BOCES Program for the afternoon.  When [petitioner] arrived, [the student] ran out of the Principal’s Office and the High School building without permission and refused to return.

At the hearing, the superintendent, the principal, the principal’s secretary and the school resource officer testified on behalf of the school district as to the incident, and a student witness testified as to her observations of petitioner’s son, which resulted in his being questioned in the first place.  Petitioner testified on her son’s behalf as to her role in his conduct.

By letter dated January 12, 2005, the hearing officer notified the superintendent that the student was guilty of “serious acts of insubordination” and “possessing a dangerous substance, possibly marijuana.”  The hearing officer recommended that the student be suspended for the remainder of the school year and placed at an alternative school.

On January 13, 2005, the superintendent notified petitioner that she adopted the findings and was placing the student in an interim alternative educational setting pending the outcome of a manifestation hearing.  Petitioner appealed the superintendent’s determination to respondent.  A manifestation hearing was held on January 24, 2005, and the Committee on Special Education found no nexus between the student’s actions and his disability.  That decision was appealed to an Impartial Hearing Officer.  On January 25, 2005, respondent denied petitioner’s appeal of the superintendent’s finding of guilt.  This appeal ensued, and petitioner’s request for interim relief was denied.

Petitioner contends that her son was denied due process.  She also alleges that the hearing officer was not impartial since he was a lawyer in the firm that represents the district.  She asserts that her son was not guilty of insubordination or possessing an illegal substance and that the determination was arbitrary, capricious and against the weight of the evidence.  She claims that the alternative educational placement was inappropriate and constitutes an illegal transfer.  Petitioner also maintains that the penalty is excessive.  Petitioner requests that the determination and penalty be set aside, her son’s record be expunged and that he be returned to his regular placement.

Respondent argues that the notice and hearing were proper.  Respondent maintains that the evidence presented at the hearing supports the finding of guilt and that the penalty is appropriate.  Respondent also argues that alleged violations of the Individuals with Disabilities Education Act (“IDEA”) cannot be adjudicated by the Commissioner.  It maintains that petitioner’s appeal to an Impartial Hearing Officer warrants dismissal of this appeal.  Respondent further claims that petitioner failed to join the BOCES as a necessary party and failed to exhaust her administrative remedies.  Respondent also argues that the appeal is moot.

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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Petitioner’s son has served the suspension.  Therefore, except to the extent that petitioner seeks expungement of her son’s record, the appeal is moot.

Petitioner alleges that the hearing officer was not impartial because he was an attorney for the firm that represents respondent.  Education Law §3214(3)(c) provides that the superintendent shall personally hear and determine the suspension proceeding or may, in his or her discretion, designate a hearing officer to conduct the hearing.  The performance of multiple functions by individuals or groups is not a violation of due process perse, and whether a violation occurs becomes a factual determination to be made in light of the circumstances surrounding the procedure (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Application to Reopen the Appeal of R.S., 38 id. 419, Decision No. 14,065; Matter of Payne, 18 id. 280, Decision No. 9,840).  There is a presumption of honesty and integrity in those serving as adjudicators and petitioner has the burden of rebutting this presumption (Appeal of R.S., 38 Ed Dept Rep 419, Decision No. 14,065; Matter of Dwaileebe, 17 id. 304, Decision No. 9,614).  The record indicates that the attorney appointed as the hearing officer acted solely in that capacity at the hearing and contains no evidence that the hearing officer acted improperly or exhibited any bias.

Petitioner argues that she did not receive proper or timely notice of the five-day suspension.  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]).

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 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 record reflects that the notice of the five-day suspension was served on petitioner on January 5, 2005, the first day of the suspension.  Furthermore, the notice failed to inform petitioner that she could request an opportunity to question complaining witnesses.  Accordingly, the notice of the five-day suspension was inadequate, and the short-term suspension must be annulled and expunged from the student’s record (Appeal of P.D., 46 Ed Dept Rep 50, Decision No. 15,438; Appeal of M.S., 44 id. 478, Decision No. 15,237).

As to the long-term suspension, petitioner claims that the written notice was deficient because it did not include a specific charge that her son possessed an illegal substance.  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; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).  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 L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).

The superintendent’s letter dated January 5, 2005 containing the notice of charges stated that the student was “insubordinate and endangered the health, safety and welfare of himself and others on January 5, 2005” and referred to the incident during which the student, while being questioned about possession of an illegal substance, denied possession of an illegal substance and left the principal’s office and the high school building without permission.  I find these charges, which mention the possession of an illegal substance, to be sufficiently specific to advise petitioner’s son and his counsel of the activities and incidents that formed the basis for the hearing (seeBd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of a Student With A Disability, 43 id. 372, Decision No. 15,021).

Although I find the notice to be reasonable, I find that there is insufficient evidence in the record to support the finding of guilt on the possession charge.  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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).

At the hearing, a student witness testified that she  observed petitioner’s son remove a ½-inch or 1-inch square clear plastic bag containing a green substance from his pocket, show it to another student and place it back in his pocket.  She testified that she thought it looked like marijuana and reported it to a guidance counselor.  She admitted upon cross-examination, however, that she did not know what the substance was and did not hear petitioner’s son say that the substance was marijuana.  Other than the fact that petitioner’s son fled after he was called to the principal’s office, no other evidence was presented at the hearing to support a charge of possession of an illegal substance.  Moreover, even the principal, who testified in this matter, admitted that there was no factual basis for finding petitioner’s son guilty of endangering the health, safety and welfare of others based upon possession of an illegal substance.  I therefore find that there was not competent and substantial evidence to support this charge.

Petitioner also contends that the evidence was insufficient to find her son guilty of insubordination.  Although petitioner assumes the blame for her son leaving school, he was 17 years old when this incident occurred and knew there was an investigation in progress when he left.  Though the evidence is equivocal as to whether the student heard the principal call out to him when he left his office, I find that the totality of circumstances establish that petitioner’s son knew that he did not have permission to leave while being questioned.  Accordingly, I find that the determination of guilt on the insubordination charge is supported by competent and substantial evidence.

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 respondent remove any reference to the five-day suspension from the student’s record in accordance with the terms of this decision; and

IT IS FURTHER ORDERED that respondent remove any reference to the finding of guilt on the possession charge from the student’s record in accordance with terms of this decision.

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