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Decision No. 16,320

Appeal of K.M., on behalf of her daughter E.W., from action of the Board of Education of the West Seneca Central School District and Superintendent Mark S. Crawford regarding student discipline.

Decision No. 16,320

(December 5, 2011)

Gross Shuman Bridzle & Gilfillan, P.C., attorneys for petitioner, Hugh C. Carlin, Esq., of counsel

Harris Beach, PLLC, attorneys for respondents, Jeffrey J. Weiss, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the West Seneca Central School District (“respondent” or “board”) upholding the suspension of her daughter, E.W.  The appeal must be dismissed.

On November 18, 2010, E.W., a student at the district’s East Senior High School (“high school”), was involved in an altercation with another female student.  The high school principal suspended E.W. for five days and referred her for a superintendent’s hearing, which occurred on November 24, 2010.  The hearing officer found E.W. guilty and accepted the principal’s recommendation to impose an additional 20-day suspension.  The superintendent accepted the hearing officer’s finding and recommendation.

On December 2, 2010, petitioner appealed the suspension to the board, which offered petitioner and her counsel an opportunity to make an oral presentation before it on December 6, 2010.  After reviewing the hearing record, in addition to the oral presentation, respondent affirmed the superintendent’s determination.  This appeal ensued.

Petitioner contends that the district’s Code of Conduct (“code”) permits only a five-day suspension for a first fighting offense and, therefore, a superintendent’s hearing should not have been held.  She contends further that the imposition of an additional 20-day suspension was not only improper under the code, but also excessive and inconsistent with penalties imposed for similar offenses in the past.  She asserts that the hearing officer failed to consider E.W.’s unblemished disciplinary record and the fact that the other student struck E.W. first.  Petitioner also alleges that the district failed to provide E.W. with adequate alternative instruction during her suspension.  Petitioner seeks to overturn the suspension and have it expunged from E.W.’s records.

Respondent asserts that the suspension imposed was in accordance with its code, was appropriate and consistent with the severity of the misconduct, and was consistent with other suspensions for fighting.  Respondent also asserts that the appeal is moot because E.W. has served the suspension and returned to school and that it provided sufficient alternative instruction.

I must first address several procedural issues.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Although petitioner names Superintendent Mark Crawford in the caption of the appeal, she neither served him with a copy of the petition nor seeks any relief against him.  Therefore, the appeal is dismissed as to him.

Petitioner submitted a “letter brief” dated February 21, 2011.  While I might ordinarily accept this as petitioner’s memorandum of law pursuant to §276.4 of the Commissioner’s regulations, in this case, the record indicates that petitioner failed to serve respondent as required by the regulation.  Accordingly, I have not accepted it.  Moreover, on March 3, 2011, respondent requested permission to submit additional exhibits pursuant to §276.5 of the Commissioner’s regulations related to the issue of alternative instruction.  As discussed below, since I need not reach the merits of the issue of alternative instruction, I have not considered such documents.

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).  E.W. served the suspension and returned to school on January 5, 2011.  Therefore, except to the extent that petitioner seeks expungement of E.W.’s record, the appeal must be dismissed as moot.  Similarly, the appeal is also moot to the extent that petitioner requests relief on her claim that respondent failed to provide E.W. with adequate alternative education during the suspension period (Appeal of C.M., 50 Ed Dept Rep, Decision No. 16,142; Appeal of D.C., 41 id. 277, Decision No. 14,684; Appeal of Harlan, 40 id. 309, Decision No. 14,488).

I note that petitioner does not appeal the guilty finding or the five-day suspension, but rather disputes E.W.’s referral to a superintendent’s hearing and the additional penalty imposed as a result of such hearing.

Respondent provides a copy of the 2010-2011 Student Agenda containing the West Seneca/East Senior High School Student Handbook (“Handbook”), the intent of which “is to provide students with important policy, program, and procedural information.”  Page 29 of the Handbook, Section III(11), Standards of Student Conduct (Student Code of Conduct) (Fighting/Physical Confrontation) provides:

Any student who uses physical force with another individual on school property will be suspended and face possible criminal charges.  Fighting will result in an automatic five day out-of-school suspension and parent conference.  A second offense may result in a Superintendent’s Hearing and removal from East Senior (emphasis in original).

Any individual has the basic right to protect themselves using a defensive posture if confronted.  However, that right does not extend to pushing, punching, kicking, etc., the other individual.  Such retaliation will be treated as stated above.

Based upon Section III(11), petitioner argues that respondent lacked the authority to impose any penalty beyond a five-day suspension upon her daughter since it was her first offense.  In other words, petitioner contends that the principal lacked the authority to refer E.W. for a superintendent’s hearing, and that the resultant penalty of an additional 20-day suspension was improper and excessive.

Respondent contends that Section III(11) does not limit or restrict its discretion to impose a penalty greater than a five-day suspension for a first offense, and that a five-day suspension is only the minimum penalty for a first offense.  Furthermore, respondent asserts that the Handbook contains only an abridged version of the code, as indicated by the concluding paragraph of the text of the Handbook on page 46:

A copy of the District code of conduct will be on file in the main office at East Senior and via the district’s website.  Any item not contained either in full or in part in West Seneca East code of conduct will be referred to in the District code of conduct (emphasis in original).

Respondent contends that the code is actually a distinct and separate document from the Handbook, and that the “West Seneca Central School District Code of Conduct” is the official version of the code, as approved by the board.  Respondent asserts that the code clearly authorizes a referral and a penalty greater than a five-day suspension for a first offense.  Specifically, Section VIII(C)(3) on page nine, entitled Disciplinary Procedures and Penalties (Minimum Periods of Suspension) (Students who commit violent acts other than bringing a weapon to school), provides:

Any student, other than a student with a disability, who is found to have committed a violent act, other than bringing a weapon onto school property, shall be subject to suspension from school for at least five days.  If the proposed penalty is the minimum five-day suspension, the student and the student’s parent will be given the same notice and opportunity for a hearing given to all students subject to a long-term suspension.  The superintendent has the authority to modify the minimum five-day suspension on a case-by-case basis.  In deciding whether to modify the penalty, the superintendent may consider the same factors considered in modifying a one-year suspension for possessing a weapon.

Conduct that is violent is defined on page 4, in Section VI(B), to include “hitting, kicking, punching, biting and scratching upon any school employee, student or upon other persons lawfully on school property.”

Pursuant to Education Law §2802, school districts must have in place a code of conduct that is adopted by the board.  In this case, the “West Seneca Central School District Code of Conduct” was adopted by respondent.  However, the district also disseminated a so-called “abridged” version of the code to high school families as part of the Handbook.  It is clear that the existence of what could be perceived as two versions of a “code,” although intended to assist parents and students, could generate great confusion.  Obviously, the code adopted in accordance with the statute must prevail, and the language therein without question authorizes a suspension for a violent act for at least five days, and, if for more than five days, then a hearing is required.  Accordingly, referral to a superintendent’s hearing was clearly authorized under respondent’s code.

Nonetheless, I note that the disclaimer at the conclusion of the Handbook, which respondent explains is intended to refer readers to the approved version of the code, is not entirely clear.  I direct respondent to ensure that the Handbook more accurately reflect the actual terms of the code and clearly apprise parents and students that they need to refer to the code for a complete statement of district policies relating to student conduct and discipline.  However, even if petitioner mistakenly relied solely on the Handbook, that would not form a basis for setting aside the suspension, since the superintendent had authority to impose the suspension under the clear and unambiguous language of the code.

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).

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, the hearing record reveals that approximately 30 minutes before the fight, the two students were engaged in a heated verbal exchange and were warned that they would be suspended from school, and possibly arrested, if the exchange escalated to a physical fight.  Nevertheless, a fight ensued during the next class, even though a teacher attempted to intervene.  According to the superintendent, the fight was “severe, dangerous and lengthy;” the girls grabbed each other’s hair, swung at each other with open or closed fists and could only be separated by four staff members after a teacher and a third student had unsuccessfully tried to intervene.  E.W. even took another swing at the other student after they were separated.

Although a teacher testified that the other student struck E.W. first, based on the record before me, I find that petitioner has failed to meet her burden of proving that the imposition of a 20-day suspension is so excessive as to warrant substitution of my judgment for that of respondent.

In light of this disposition, I need not address the parties’ remaining contentions.  However, I am compelled to comment on one aspect of the hearing.  A student’s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty, and only if notice of its contents has been given in advance to the student (Appeal of a Student Suspected of Having a Disability, 46 Ed Dept Rep 453, Decision No. 15,562; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337; Appeal of D.F.B., 43 id. 496, Decision No. 15,064).  Although not raised by petitioner, the hearing record reveals that the hearing officer requested E.W.’s anecdotal record prior to his guilty determination.  Although E.W. had no prior disciplinary record, and thus there was no prejudice or due process violation under these circumstances, I remind respondent of its obligation to follow proper hearing procedures.