Appeal of G.H. and S.H., on behalf of their son W.H., from action of the Board of Education of the Marathon Central School District regarding student discipline.

Decision No. 17,269

(December 4, 2017)

Ferrara Fiorenza PC, attorneys for respondent, Eric J. Wilson, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal a determination of the Board of Education of the Marathon Central School District (“respondent”) which imposed discipline on their son.  The appeal must be sustained.

On October 13, 2015, a student on a district bus located an unidentified lunch bag and brought it to the bus driver.  The bus driver recognized the lunch bag as belonging to the student who is the subject of this appeal.  The bus driver observed a plastic bag tucked into a side compartment of the lunch bag which contained pills.  When the bus driver returned to the bus garage, she provided the lunch bag to her supervisor. 

Later that day, the principal contacted petitioner S.H. and informed her that her son would be suspended for three days based upon his possession of “over the counter medication.”  The principal asked petitioner S.H. if she knew what the pills were, and petitioner S.H. responded in the affirmative, explaining that the pills were “vitamin C, Olive Leaf extract and Echinacea supplements.”  The principal stated that, according to school policy, over the counter medications must be authorized by parents and physicians and may only be administered by the school nurse.  The principal requested that the student be immediately picked up from school.

In letters[1] dated October 15, 2015, the principal stated that the student's possession of the supplements violated the portion of respondent's code of conduct prohibiting “conduct that endangers the safety, morals, health, or welfare of others.”  One letter described the supplements as “unknown substances” and noted that the student “admitted to having them in his possession.”

Petitioners subsequently met with the superintendent and the principal.  Petitioners explained that they were aware of the district's policy concerning the administration of over the counter medications, but contended that the pills which the student possessed were nutritional supplements, which the Food and Drug Administration considers food, not drugs.  The superintendent declined to modify the student’s three-day suspension, and petitioners thereafter appealed to respondent.

In a letter dated October 22, 2015, respondent's president informed petitioners that the board had considered their appeal on October 14, 2015, and upheld the three-day suspension.  This appeal ensued.

Petitioners contend that the superintendent upheld the principal’s suspension because the student possessed “look-alike” drugs, but that such rationale was not reflected in the principal’s suspension notice.  Petitioners further assert that, unbeknownst to them, respondent considered this “look-alike” analysis in resolving their appeal and suggest that respondent “was possibly presented with different information than we were provided.”  Petitioners further object to the fact that the “dates on the documented statements from the school and bus garage” which were provided to the board “do not match up with the date [of] the board meeting.”  Petitioners request that the student’s suspension be expunged from his record.

Respondent contends that the appeal should be dismissed as untimely; that it has the authority to promulgate and implement policies concerning the possession and administration of drugs; that its relevant policies are reasonable; and that the penalty imposed was consistent with its code of conduct.

First, I must address a procedural matter.  Respondent submitted a memorandum of law containing new assertions and exhibits.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, I have not considered respondent’s newly submitted assertions and exhibits contained in its memorandum of law.

Next, respondent asserts that the instant appeal is untimely because it was not served within 30 days of its October 14, 2015 decision.  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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). 

In their petition, petitioners allege as follows:

On 10/14/15 at approximately 9:00 PM ... we were met in the parking lot by [the superintendent] and were informed that the board decided to uphold the principal’s decision to suspend [the student] because of possession of Look-alike Drugs. We had a brief discussion of the matter and requested copies of all documents that were presented by the school to the board and the board’s decision and were given a copy of the board’s decision which state[d] that [the student] is suspended for possession of look-alike drugs. 

The record contains two notices of suspension signed by the principal, both dated October 15, 2015, which was after October 14, 2015, the date upon which respondent purportedly rendered its decision on appeal.  Although not entirely clear, as noted above, petitioners, who appear pro se, appear to acknowledge that they received a copy of the board’s decision on October 14, 2015.  However, the record contains only a copy of a letter dated October 22, 2015 in which respondent communicated its decision to petitioners, and there is no proof in the record as to when petitioners received that letter.[2]  Therefore, affording the usual five days for mailing, petitioners were required to serve the petition by November 30, 2015.  Petitioners’ affidavit of service indicates that the petition was served on November 24, 2015.  The burden is on respondent to establish any affirmative defenses, and on this record, particularly in light of the fact that respondent provided petitioners with an October 22, 2015 letter in which it communicated its decision to uphold the suspension, I will not dismiss the appeal as untimely (see e.g. Appeal of Eschmann, 55 Ed Dept Rep, Decision No. 16,853; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).[3]

Turning to the merits, 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).

Here, I find that petitioners have met their burden of proof to show that respondent’s decision was arbitrary and capricious.  Petitioners have asserted, and respondent has not refuted, that the student possessed vitamins and herbal supplements which the Food and Drug Administration classifies as foods, not drugs.  Petitioners admit that they were and are aware of respondent’s policy which prohibits the possession of “over-the-counter and/or prescription drugs or harmful substances,” but argue that the “food” possessed by the student did not fall into any of these categories.  Respondent has submitted no proof to refute petitioners’ allegations or establish that the vitamins and herbal supplements at issue were over-the-counter drugs or harmful substances within the meaning of its policy that would support a finding that the student engaged in “conduct that endanger[ed] the safety, morals, health or welfare of others.”  Therefore, on this record, I find that petitioners have met their burden of proving that the student’s conduct was not prohibited by any portion of respondent’s code of conduct.

To the extent respondent argues that the supplements were subject to prohibition as “look-alike” drugs, this rationale is not supported by the evidence in the record.  Respondent has not established on this record that its code of conduct prohibits the possession of “look-alike” drugs or that the principal, superintendent or respondent relied upon such reasoning in imposing or upholding the student’s sentence.  Therefore, this rationale cannot serve as a basis to support the student's suspension.

Although respondent has failed to demonstrate on this record that its code of conduct prohibits possession of vitamins, herbal supplements or “look-alike” drugs, nothing in this decision should be construed as prohibiting respondent from adopting a code of conduct which clearly apprises students and parents that students may be subject to discipline for the unauthorized possession of nutritional supplements, herbal remedies or look-alike drugs.

Although petitioners did not challenge the procedures followed by respondent in imposing the student’s suspension, I find that the two notices of suspension violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4), and that such violations would also support expungement of the student’s 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 F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  

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 this case, the written notices were dated two days after the informal conference with the principal and there is no proof in the record that written notice was provided to petitioners prior to the informal conference as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l).  Respondent’s provision of written notice after the informal conference defeated the purpose of the written notice requirement as explained above.

Further, the written notices were defective because they did not apprise petitioners of their right to question complaining witnesses (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).  I admonish respondent that, when imposing future short-term suspensions, it must fully comply with the requirements of Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4).

In light of the above disposition, I need not address the parties’ remaining allegations.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent's suspension of W.H. from October 16, 2015 through October 20, 2015 be expunged from his record.

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