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Decision No. 16,186

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Rockville Centre Union Free School District regarding student discipline.

Decision No. 16,186

(January 11, 2011)

Rosenblum Bianco & Ciurcina, LLP, attorneys for petitioner, Josh B. Rosenblum, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Ethan D. Balsam, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Rockville Centre Union Free School District (“respondent”) to uphold the suspension of his son.  The appeal must be dismissed.

On May 8, 2009, at the end of a class period, a teacher at respondent’s high school delivered to the dean of students a glass container containing marijuana that she had found on the floor of her classroom.  The teacher identified petitioner’s son, then in 10th grade, as the student sitting closest to where she found the container.  The dean notified the assistant principal and they called a security guard to escort petitioner’s son to the assistant principal’s office.  The principal avers that after the assistant principal informed her that the student had admitted bringing the marijuana to school and had written a statement to that effect, she determined to suspend the student for five days, from May 8 to May 14, 2009, for possession of marijuana, and directed the assistant principal to telephone petitioner’s mother about the suspension and request that she pick him up at school.  A letter from the principal, notifying petitioner and his wife of the suspension and of their right to an informal conference, was hand-delivered that day.

Also by letter dated May 8, 2009, the superintendent notified petitioner and his wife that a superintendent’s hearing would be held on May 14, 2009 to determine whether their son should be suspended for a period in excess of five days for the charge that on May 8, 2009, he “was disorderly and/or conducted himself in such a manner as to endanger the health, safety and welfare of himself and others in that he was in possession of marijuana on school grounds.”

After a hearing on May 14, 2009, the hearing officer determined that petitioner’s son was guilty of the charge.  However, because petitioner’s son had a section 504 plan, the hearing officer deferred making a recommendation regarding penalty until the manifestation team convened to determine whether there was a nexus between the student’s actions and his disability.  The manifestation team determined that the student’s possession of marijuana was neither caused by nor had a direct relationship to his disability.  Thereafter, by letter dated May 15, 2009, the superintendent notified petitioner and his wife that, after consultation with the hearing officer, he was suspending their son through January 30, 2010.  However, the superintendent also stated that their son could be allowed to return to school at the beginning of the 2009-2010 school year if they provided substantial evidence that he was receiving counseling and drug treatment.

Petitioner appealed the superintendent’s determination to respondent.  On May 27, 2009, respondent upheld the suspension.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner contends that respondent violated the Education Law and the Commissioner’s regulations because his son did not possess marijuana in school and was improperly suspended.  Petitioner asserts that respondent failed to provide prior written notice of the suspension; that it improperly sent concurrent notices of his right to an informal conference and of the superintendent’s hearing; that it failed to provide reasonable accommodation for his son’s known disability; and that the principal treated the referral to the superintendent as mandatory rather than discretionary notwithstanding the district’s Code of Conduct (“code”).  He also asserts that he was denied his rights to due process at the hearing and that the penalty was excessive.  He seeks to annul and expunge the suspension from his son’s record, or alternatively, to reduce the term of the suspension.  Petitioner also requests that I draw a negative inference against respondent because of its refusal to provide information in response to his request under the Freedom of Information Law (”FOIL”) regarding the duration of other drug-related suspensions, or, alternatively, that I obtain such records and consider them in addressing the penalty.

Respondent asserts that the petition lacks merit.  It denies any procedural violations by school officials or the hearing officer and denies that it discriminated against petitioner’s son.  Respondent asserts that the penalty was appropriate and that the Commissioner lacks jurisdiction over any alleged FOIL violations.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  In response to an inquiry from my Counsel’s Office, respondent verified that petitioner’s son returned to school on September 1, 2009, the first day of classes for the 2009-2010 school year.  Thus, the duration of the suspension was approximately seven weeks, from May 8 to June 26, 2009.  Accordingly, except to the extent that petitioner seeks expungement of the student’s record, the appeal must be dismissed as moot.

Regarding the five-day suspension, Education Law §3214(3)(a) authorizes a board of education, board of trustees, sole trustee, superintendent of schools, district superintendent, or principal of a school to suspend a “pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.”  The statute does not authorize an assistant principal to suspend students, nor does it authorize the principal to delegate her authority to suspend (Appeal of C.R., 45 Ed Dept Rep 303, Decision No. 15,330; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883; Appeal of E.R., 40 id. 599, Decision No. 14,565).

Petitioner contends that the five-day suspension must be dismissed because the assistant principal, not the principal, suspended his son.  Petitioner asserts, and respondent admits, that the assistant principal notified his wife of the suspension by telephone and directed her to pick up their son at school.  However, in her affidavit, the principal avers that after the assistant principal informed her that petitioner’s son had admitted possessing marijuana and had written so in a statement, she met with the student directly, he admitted the possession to her and she decided to suspend him for five days, after which she directed the assistant principal to contact his mother (seee.g.Appeal of Knapp, 39 Ed Dept Rep 453, Decision No. 14,282).  Moreover, the principal signed the May 8, 2009 suspension letter.  Accordingly, I find that the principal properly suspended petitioner’s son in accordance with the statute and regulation.

Petitioner also contends that the five-day suspension must be dismissed because he did not receive prior notice.  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of a F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

In this case, it is undisputed that the principal’s short-term suspension letter was hand-delivered to petitioner’s wife on May 8, 2009.  The question, therefore, is whether the student posed a “continuing danger to persons or property or an ongoing threat of disruption to the academic process” such that the notice could take place as soon after the suspension as was reasonably practicable, rather than prior to the suspension (Education Law §3214[3][b][1]).

Although petitioner argues that respondent made no showing that his son posed a continuing danger or threat of disruption, the principal’s suspension letter specifically provided that his son’s “continued presence in school poses an on going threat of disruption to the academic process” (seeAppeal of C.P., 49 Ed Dept Rep ___, Decision No. 16,053).  Furthermore, in her affidavit, the principal avers that she decided to have the student’s mother pick him up at school immediately based on his emotional state and because “returning a student to the classroom environment after being caught with marijuana would have been very disruptive to other students.”  In addition, the hearing transcript reveals that both the dean and assistant principal testified that the student was very upset when questioned in the assistant principal’s office; in fact, the assistant principal testified that the student had threatened to kill himself.  Accordingly, I find sufficient evidence in the record to support a reasoned determination that the student posed a threat of disruption and conclude that the notice provided was adequate under the circumstances.

Petitioner contends further that he was denied his right to an informal conference and to question complaining witnesses by concurrent service of the suspension letter and the notice of a superintendent’s hearing on the same day, and by the principal’s predetermination to refer the matter to the superintendent for additional disciplinary action notwithstanding the district’s code, which provides, for a first drug offense, a five-day out-of-school suspension and possible referral to the superintendent.

Petitioner’s claims are unavailing.  The record demonstrates that petitioner received separate notice of the suspension and hearing by the principal and superintendent, respectively, and nothing in Education Law §3214 or the Commissioner’s regulation prohibits such letters being sent on the same day.  The record also reveals that the principal testified that she considered drug-related matters to be very serious and always referred them to the superintendent.  Accordingly, and in light of petitioner’s son’s admission, as discussed below, her referral to the superintendent was reasonable and in accordance with the code.

Turning to the merits, 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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).

The dean and assistant principal both testified that when petitioner’s son arrived at the assistant principal’s office he was visibly upset, and when asked if he knew why he was there, he answered in the affirmative, pointed to the glass container containing marijuana, and stated “because of that.”  They further testified that when asked if the glass container belonged to him, he said yes.  In addition, when asked by the dean to write a statement about what happened, he wrote, “I had in my possession a BIC lighter and a small amount of marajuana [sic], because I had the intention to smoke the product later in the day.  I realize the possession of it was wrong, and stupid.”  The principal also testified that the student verbally admitted to her possessing marijuana.

Petitioner contends that the statement is inadmissible because his son was coerced into writing it.  He contends further that the suspension must be dismissed because his son never actually had marijuana in his possession when he was removed from the classroom, which was open to the public.  Alternatively, he argues that his son should receive less than the maximum sentence since he never actually possessed the marijuana.  However, the dean and assistant principal both testified that they did not force or coerce the student into writing a statement or tell him what to write.  Moreover, at the hearing, the student testified that, “I hadn’t realized until third period that day that I had possession, and then at that point I didn’t realize I lost it until fifth period and that I was okay with I lost it [sic].”  That admission, in conjunction with his admissions to the dean, assistant principal and principal clearly constitute sufficient proof of guilt of the charge of possession.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).  As noted above, the superintendent permitted petitioner’s son to return to school at the commencement of the 2009-2010 school year.  Based on the record before me and the fact that this penalty is consistent with the district’s code,[1] I cannot conclude that a seven-week suspension is so excessive as to warrant the substituting of my judgment for that of respondent (accordAppeal of J.S., 50 Ed Dept Rep ___, Decision No. 16,091).

Finally, with regard to petitioner’s request regarding his FOIL inquiry, section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal, and I decline to draw any inferences regarding penalty from respondent’s response or lack thereof.  In addition, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

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



[1] The code provides for a six month suspension from school and school-sponsored events for a first drug offense.