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Decision No. 16,043

* Subsequent History: Matter of Robley v Steiner; Supreme Court, Albany County; Judgment dismissed petition to review; March 15, 2011. *

Appeal of C.R., on behalf of her son S.R., from action of the Board of Education of the Three Village Central School District regarding student discipline.

Decision No. 16,043

(March 31, 2010)

Law Offices of Frederick K. Brewington, attorneys for petitioner, Frederick K. Brewington and Mili Makhijani, Esqs., of counsel

Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel

STEINER, Commisioner.--Petitioner appeals the decision of the Board of Education of the Three Village Central School District (“respondent”) declining to remove an incident from the disciplinary record of her son, S.R.  The appeal must be dismissed.

On October 23, 2008, S.R., a 16-year-old student in respondent’s district, drew an object in the shape of a swastika with a school computer program which offended a classmate.  The classmate notified the teacher, who spoke with S.R. and asked him to erase the picture.  S.R. promptly complied.  Six days later, on October 29, 2008, the administrative dean was notified of the incident and reported it to the high school principal.  S.R. was issued a one-day in-school suspension and was required to write a letter of apology.   

On October 31, 2008, petitioner met with the high school principal to request that the incident be removed from S.R.’s student records.  While the principal declined to remove the incident from S.R.’s record, he amended the language characterizing the incident to petitioner’s satisfaction.  Petitioner met with the principal on two additional occasions to request the removal of the incident from S.R.’s record.  Petitioner’s requests were denied.  Petitioner appealed to the superintendent, who supported the principal’s decision.  Petitioner then appealed to respondent and by letters dated April 15 and April 17, 2009, petitioner was informed that the superintendent’s determination was upheld.  This appeal ensued.

Petitioner contends that S.R.’s record should be expunged because the incident carries serious negative connotations, and that to permit the incident to remain on S.R.’s permanent record is a sanction disproportionate to the severity of the offense.  Petitioner further maintains that the sanction was administered in an arbitrary and capricious manner.

Respondent states that the discipline imposed by the principal and superintendent is supported by substantial and competent evidence that S.R. actually participated in the incident and that the penalty was appropriate.  Respondent further contends that the petition should be dismissed as untimely.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  Petitioner’s counsel received two letters from respondent.  The first, dated April 15, 2009, upheld the superintendent’s determination, but cited an incorrect vote.  The second, dated on April 17, 2009, was faxed to petitioner’s counsel and cited a revised resolution representing the correct final vote of respondent.  Petitioner alleges that she actually received the first letter on April 16 and the second letter on April 18, 2009.  Respondent has produced no evidence to the contrary.  The 30-day time frame imposed by Education Law §310 ended on May 16, 2009, a Saturday.  If the last day for service of a petition falls on a Saturday, service may be made on the following Monday (8 NYCRR §275.8[a]).  Accordingly, I find that petitioner’s appeal, commenced on May 18, 2009 is timely.

In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.C. and D.C., 46 id. 447, Decision No. 15,560; Appeal of Y.P. and S.P., 46 id. 445, Decision No. 15,559).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.C. and D.C., 46 id. 447, Decision No. 15,560; Appeal of Y.P. and S.P., 46 id. 445, Decision No. 15,559).

Here, petitioner admits that her son engaged in the conduct but asks that the in-school suspension be expunged from his records.  She met with the school principal on more than one occasion, and her appeals were entertained by the superintendent and respondent.  Petitioner had an opportunity to discuss the conduct with the person authorized to impose the discipline, and there is no indication or allegation that the procedures followed were not fair.  Therefore, respondent has satisfied its obligation of procedural fairness with respect to the in-school suspension and the appeal must be dismissed (Appeal of L.O. and E.O., 49 Ed Dept Rep ___, Decision No. 16,007).