Decision No. 12,608

(December 11, 1991)

SOBOL, Commissioner.--Petitioner is the father of Zaccary Danison who was a student in respondent board's middle school during the 1990-91 school year. Petitioner brings this appeal to challenge the one day in-school suspension imposed by respondents on petitioner's son. Petitioner requests that the suspension be annulled and that respondent Pevo be removed from his position pursuant to '306 of the Education Law. Petitioner previously asked that I stay his son's suspension pending final determination of this appeal, and that request was denied. The appeal must now be dismissed.

On or about February 8, 1991 petitioner's son Zaccary engaged in a verbal exchange with two of his classmates. In that exchange, Zaccary used an obscene word. His classmates reported the incident to the classroom teacher, who in turn reported it to another teacher who served as dean of students or school disciplinarian. The dean spoke to Zaccary about the incident and Zaccary acknowledged that he had indeed used the word in question. The dean then wrote a brief report in which he recommended that Zaccary serve a one day in-school suspension. The middle school principal, Mr. Pevo, adopted the dean's recommendation. Zaccary brought home a copy of the report of the incident and showed it to petitioner. During a February 19 meeting with Mr. Pevo, petitioner objected to the proposed one day in-school suspension. It does not appear from the record that the matter was resolved at this meeting.

From February 19 until June 21, 1991, the record reflects a series of letters and communications between petitioner and respondents, and also correspondence between petitioner and Donald Dryden, Superintendent of Schools. In that correspondence, petitioner reiterates his objection to the proposed in-school suspension, and requests that the board of education take certain actions. While the board of education indicated that it reviewed the correspondence in executive session, and offered to meet with petitioner to discuss the matter, it did not comply with petitioner's request. As a result, petitioner refused to meet with the board. By letter dated June 21, 1991, respondent Pevo advised petitioner that his son's in-school suspension would take place on September 9, 1991. Shortly after receiving that letter, petitioner initiated this appeal.

Petitioner alleges that respondents violated '3214 of the Education Law and the school district's administrative procedures relating to suspensions by suspending his son. Petitioner further claims that respondents do not provide substantially equivalent education for students who are suspended.

Respondents contend that they followed proper procedures and that the in-school suspension imposed was appropriate. Specifically, they allege that prior to recommending the suspension, school officials properly informed petitioner's son of the alleged offense, and that he admitted he had used obscene language and agreed to sign the disciplinary report. Respondents claim that the in-school suspension was imposed on the basis of the report and Zaccary's admission. Respondents further contend that petitioner has not requested a parental conference as specified in Education Law '3214(3)(d), and affirmatively allege that petitioner has been offered an opportunity to meet with the superintendent, the witnesses, the teacher, and the board of education, but has not taken advantage of those offers. Respondents also contend that since respondent Pevo is not a school district officer within the meaning of '306 of the Education Law, petitioner's request that he be removed pursuant to that provision is without legal basis. Finally, respondent board denies petitioner's claim that it does not provide a substantially equivalent education for suspended students who are under 16 years of age.

Section 306 of the Education Law empowers the Commissioner of Education to remove only trustees, members of a board of education, clerks, collectors, treasurers, district superintendents, or superintendents of schools or other "school officers" for certain willful violations or neglect of duty. Section 2(13) of the Education Law, which contains definitions for use in interpreting the Education Law, does not define "school officer" to include employees of the board of education, such as a principal. I, therefore, find that as a matter of law respondent Pevo is not subject to removal pursuant to '306 of the Education Law (Matter of Maskell, 17 Ed Dept Rep 385).

Petitioner's argument that respondents have violated '3214 of the Education Law relating to student discipline cannot be sustained. In Matter of Watts, 23 id. 459, 460-461, Commissioner Ambach held that the procedures required for a suspension from school as set forth in '3214 of the Education Law, were not applicable to "in-school" suspensions:

The record before me demonstrates that petitioner met with the principal to discuss the suspension and was offered, but refused, the opportunity to meet jointly with the principal and the superintendent. Petitioner was also given the opportunity to discuss the matter with the board of education in executive session -- an offer which he also declined. While petitioner may have had reasons for not wishing to accept these offers, the fact is that the offers were made, and I find that respondents have satisfied their obligation of procedural fairness to petitioner by affording him the chance to discuss the conduct which led to the in-school suspension.

Petitioner's argument that respondents failed to comply with administrative guidelines relating to student suspensions cannot be sustained because petitioner has failed to demonstrate that any such violation occurred. The administrative guidelines referred to in the petition provide for a range of procedures, the particular procedure used being dependent upon the principal's judgment of the seriousness of the offending student conduct. In view of the fact that the infraction of school rules in this case led only to a one day in-school suspension, rather than a suspension from attendance or referral to family court, it would appear that the principal considered the infraction a minor problem and dealt with it in a manner commensurate with its seriousness. In such cases, the administrative guidelines do not require the procedures which petitioner alleges were violated in this case. Furthermore, even if this matter was considered a "serious" offense, the administrative procedures were substantially complied with: a record of the offense was made, petitioner was notified of the incident, and petitioner met with the principal to discuss the incident. Based upon the record before me, I find that petitioner has failed to demonstrate that respondents violated administrative guidelines in imposing the one day in-school suspension upon petitioner's son.

In the reply submitted in this proceeding, petitioner refers to alleged violations of law concerning access to records and other matters. Since petitioner failed to raise these issues in the petition, I will not consider them in this appeal (8 NYCRR 275.14). Moreover, petitioner's contentions relating to alleged violations of the Family Educational Rights and Privacy Act are solely enforceable by the United States Secretary of Education, and not the Commissioner of Education (Matter of Irwin, 23 id. 221). In addition, it is well settled that alleged violations of the Freedom of Information Law may not be entertained in an appeal to the Commissioner of Education pursuant to the provisions of '310 of the Education Law (Appeal of Krasinski, 29 id. 375).

THE APPEAL IS DISMISSED.

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