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Decision No. 16,195

Appeal of L.I., on behalf of her son A.I., from action of the Board of Education of the Miller Place Union Free School District regarding student discipline.

Decision No. 16,195

(January 10, 2011)

Guercio & Guercio, LLP, attorneys for respondent, Richard J. Guercio, Randy Glasser and Kathryn Maier, Esqs., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the Miller Place Union Free School District (“respondent”) to discipline her son, A.I.  The appeal must be dismissed.

During the 2008-2009 school year, A.I. was a student in respondent’s high school.  On February 10, 2009, A.I. became involved in a physical altercation between two other students and physically restrained one of them.  On the same day, the district’s high school principal notified petitioner by a hand-delivered letter that he was proposing that A.I. be suspended for three days for “inappropriate physical behavior.”  A.I. served the suspension on February 10, 11 and 12, 2009.  On February 23, 2009, petitioner requested a conference with the principal, which was held on February 26, 2009.  The principal upheld the suspension.

On March 2, 2009, petitioner appealed to the superintendent, who sustained the suspension.  On March 20, 2009, petitioner appealed to respondent.  On June 2, 2009, respondent notified petitioner by phone that it was sustaining the decision.  By letter dated June 16, 2009, respondent notified petitioner that the decision was upheld and advised that A.I.’s suspension would not be on his permanent record.  This appeal ensued. 

Petitioner argues that she was denied due process because the district failed to provide her with an informal conference prior to the suspension and because respondent failed to respond to her appeal within 30 days.  Petitioner also argues that her son should not have been suspended because he intended only to prevent a fellow student from being hurt.  Petitioner seeks to have the suspension expunged from her son’s record and the recalculation of eligibility for an outstanding attendance award.     Respondent contends that it provided petitioner with due process, that A.I.’s suspension was appropriate, and that the petition is untimely.

First, 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Although the district informed petitioner by telephone of respondent’s determination on June 2, 2009, petitioner received written notice of respondent’s decision by letter dated June 16, 2009.  An affidavit of service reflects that a petition was served on July 9, 2009, within 30 days of petitioner’s written notification of respondent’s decision.  By letter dated July 14, 2009, that petition was returned to petitioner by my Office of Counsel because it did not comply with the Commissioner’s regulations.  Petitioner was notified that if a corrected petition was served and filed within two weeks from the date of such letter, the appeal would be deemed to have been initiated on the date the original petition was served on respondent.  Petitioner re-served a corrected petition on July 20, 2009 and filed the petition on July 23, 2009, within two weeks of the July 14, 2009 letter.  The appeal, therefore, is timely (seeAppeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of E.R., 40 id. 599, Decision No. 14,656).

Petitioner contends that she was denied due process because respondent failed to provide the required written notice prior to the 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 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]).

Here, the district’s high school principal suspended A.I. on the day of the altercation prior to providing petitioner with an informal conference.  Respondent maintains that given the physically violent nature of A.I.’s conduct, interjecting himself into the altercation and placing another student in a chokehold, his presence in school posed a continuing danger to others or an ongoing threat of disruption to the academic process.  Although petitioner does not dispute her son’s actions, she argues that the record does not support a conclusion that A.I.’s presence posed a threat.  However, in an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR §275.10; Appeal of C.P., 49 Ed Dept Rep ___, Decision No. 16,053).  Based on the record before me, I cannot conclude that the determination to suspend A.I. immediately was arbitrary and capricious.  Accordingly, an informal conference was only required to be held as soon after the suspension as was reasonably practicable.

Moreover, although the district’s high school principal provided petitioner with written notice of the suspension on February 10, 2009, which advised petitioner of her right to an informal conference, petitioner did not request a conference until February 23, 2009, after A.I. had served his suspension.  On these facts, I find that petitioner was afforded the opportunity for an informal conference in a timely manner and her claim that she was denied due process is without merit.

As to petitioner’s further claims that she was denied due process by respondent’s failure to issue its decision within 30 days, petitioner has failed to provide any legal authority establishing respondent’s duty to issue a decision within such period of time.  Therefore, this claim is also without merit.

Petitioner further contends that A.I. should not have been suspended for physically restraining another student.  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).  A.I. admits that he placed a fellow student in a chokehold to restrain her from attacking his friend.  Regardless of the motive behind his conduct, A.I. engaged in physical conduct prohibited by respondent’s code of conduct.  Therefore, respondent’s decision to suspend A.I. from school was not arbitrary or capricious. 

In light of this disposition, I need not address petitioner’s remaining contentions.