Decision No. 12,777

(August 7, 1992)

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, Esqs., attorneys for respondents, Daniel R. Mooney, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a decision of respondent Selander, principal of the Ellsworth J. Wilson High School, to suspend petitioner for one day (in-school suspension) due to tardiness. Petitioner also appeals from respondent Selander's decision to tow petitioner's illegally parked automobile from school property without specific warning on several occasions. Petitioner requests that the records concerning the in-school suspension be expunged from his file, and that the certification of respondent Selander be reviewed for possible revocation, suspension, or censure for his actions. The appeal must be dismissed.

Before reaching the merits, I must determine whether this appeal should be dismissed on procedural grounds. Respondents first contend that this appeal should be dismissed because the petition was served more than 30 days after the challenged acts. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner be instituted within 30 days from the making of the decision or the performance of the act complained of. Petitioner served the one day in-school suspension on April 27. Within the thirty-day period, on May 25, petitioner served the petition. However, that petition did not meet the requirements of 8 NYCRR '275 concerning format. By letter dated June 8, my counsel returned the petition and advised petitioner that a corrected petition would have to be served within two weeks to meet timeliness requirements. Petitioner served the corrected petition on June 27, more than three weeks later, and provided no explanation for the delay. Consequently, the appeal must be dismissed as untimely.

Respondents contend that the appeal should also be dismissed because petitioner did not exhaust his administrative remedies before appealing to the Commissioner. Administrative remedies must be exhausted before an appeal to the Commissioner of Education may be brought (Matter of Luppino, et al., 19 Ed Dept Rep 12). The policy of respondent board is to afford a student and his parents an opportunity to appeal a decision of a school official to the superintendent of schools and subsequently to the board. The appeal procedure is outlined at page 63 in the student handbook of the Ellsworth J. Wilson High School. All students are provided copies of the student handbook. It is undisputed that petitioner did not appeal the decision of the building principal to the superintendent of schools and the board of education. Accordingly, the appeal must also be dismissed for failure to exhaust administrative remedies.

Respondents further contend that the petition is defective because it does not contain a clear and concise statement of the claim showing that petitioner is entitled to relief, as required by 8 NYCRR '257.10. I note that petitioner is not represented by counsel. In such cases, a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing parties (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519). I find that the petition adequately states petitioner's claim for relief and that respondents adequately addressed petitioner's allegations in their answer. Because respondents have failed to establish that they were prejudiced by petitioner's drafting, I will not dismiss the appeal on that basis (Appeal of Schechter, et al., 28 Ed Dept Rep 118).

Finally, respondents contend that the question of the parking and towing of petitioner's vehicle was already decided in the City Court of the City of Rochester, Small Claims Division, and should be dismissed under the doctrine of resjudicata. The City Court found "no cause of action". Where a court of competent jurisdiction has already denied claims identical to those raised before the Commissioner, an appeal pursuant to '310 does not lie (Appeal of Goldberg, 29 Ed Dept Rep 476). However, petitioner brought the small claims action for recovery of towing expenses. Petitioner does not seek money damages in this proceeding, but rather a determination that respondent Selander's actions were arbitrary and capricious. Respondents have failed to provide evidence in the record that the court decided that issue. Therefore, I will not dismiss petitioner's claim under the doctrine of resjudicata.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner contends that the one day in-school suspension was improper because it constituted discipline for behavior for which he had been previously disciplined, that the discipline was excessively harsh, and that his due process rights were violated.

Petitioner was a senior at the Ellsworth J. Wilson High School. During the school year he was tardy without acceptable excuse on December 12, December 18, January 4, March 8, March 30, and April 24. Although petitioner alleges that his mother provided written excuses for some or all of these instances, petitioner provides no evidence in the record of such excuses. Petitioner served two days of detention, on January 8 and 9, for the first three instances of lateness. On April 2, respondent Selander wrote petitioner's parents about petitioner's record of tardiness. After an additional instance of tardiness, petitioner was assigned to a one day in-school suspension, to be served on April 27.

Petitioner contends that the one day in-school suspension was improper because it was based on six instances of tardiness and that he was disciplined previously for three of them. This contention is without merit. Petitioner was disciplined for a continuing problem. He did not receive the one day in-school suspension for the first three instances of unexcused tardiness, but for failing to modify his behavior and being tardy without acceptable excuse on three additional days. It was reasonable for respondent Selander to consider petitioner's pattern of tardiness throughout the school year before imposing the one day in-school suspension.

In regard to the penalty, I will not substitute my judgment for that of respondent unless the penalty is excessive (Appeal of Langenmayr, 30 Ed Dept Rep 322). The one day in-school suspension required petitioner to report to school and complete instructional assignments provided by his teachers, instead of attending regular class periods. Petitioner has not shown this penalty to be excessive under the circumstances.

Nor were petitioner's due process rights violated. In-school suspensions are analogous to suspensions or other similar disciplinary steps taken by school administrators that do not require a full hearing pursuant to Education Law '3214(c). However, such a suspension may be imposed only in accordance with a procedure which is basically fair and which grants the student and parent an opportunity to appear informally before the person or body authorized to impose discipline, to discuss the conduct being reviewed (Appeal of Danison, 31 Ed Dept Rep 169; Matter of Watts, 23 id. 459). The assistant principal of the high school met with petitioner to discuss his record of tardiness on April 25. At that time, the assistant principal told petitioner that he would have to serve the one day in-school suspension. Petitioner was given an opportunity to tell his side of the story at the conference with the assistant principal. Respondent Selander sent a letter to petitioner's parents advising them of the in-school suspension on April 25. Petitioner's parents did not request a conference on this matter. I am thus satisfied that petitioner was accorded the process due him.

Petitioner also claims that respondent Selander acted arbitrarily and capriciously when he had petitioner's illegally parked car towed from school grounds. It is undisputed that, effective November 29 of his senior year, petitioner's parking privileges were revoked. One week prior to that date, respondent Selander provided petitioner with written notice of such revocation that warned, "If your vehicle is found on school property, it may be towed at your expense." Petitioner admits that he received this notice. Petitioner does not claim that he was authorized to park on school grounds on any occasion that his car was towed. However, petitioner claims that respondent Selander treated him in an arbitrary and capricious manner by not warning him before each occasion that his car was to be towed, as he alleges other students were warned.

Respondent Selander contends that he followed school policy and did not single out petitioner. In an appeal to the Commissioner, it is the burden of the petitioner to establish facts upon which the claim for relief is founded (8 NYCRR 275.10, Appeal of Negrin, 29 Ed Dept Rep 484). Petitioner provides no evidence in the record of the specific circumstances of the towing incidents and provides insufficient evidence that respondent Selandar treated petitioner differently from other students. Accordingly, petitioner has not established that respondent Selander acted in an arbitrary or capricious manner.

THE APPEAL IS DISMISSED.

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