Decision No. 12,877

(January 8, 1993)

SOBOL, Commissioner.--Petitioner appeals from respondent's decision to suspend her son from school for five days. The appeal must be sustained.

Petitioner's son was a sixth grade student at the Watkins Glen Middle School when the incidents underlying this appeal occurred. During that year, the student was suspended from school on numerous occasions. On May 30, 1991, petitioner's son was "written up" by a teacher for interrupting class during one period and for "talking and fooling around" during another. The teacher's report indicated that the student's poor behavior continued despite repeated warnings. Based upon the teacher's report, the school principal, Mr. Pevo, recommended that petitioner's son be suspended from school for five days. Thereafter, Mr. Pevo and petitioner met to discuss the incident and a subsequent meeting was held with the superintendent, Donald Dryden. Superintendent Dryden affirmed the principal's recommendation and suspended the student for five days.

On June 12, 1991, petitioner's son was written up again by the same teacher. In response, the principal recommended a three-day suspension. That recommendation was also affirmed by the superintendent.

In response to petitioner's request, respondent board of education reviewed both suspensions on June 25, 1991, in executive session. The board decided to combine the two suspensions into one five-day suspension commencing in September of the following school year, and asked the superintendent to offer an academic alternative to serving the out-of-school suspension. The superintendent offered to reduce the student's suspension one day for every book report petitioner's son submitted between July 3, 1991 and September 9, 1991. This appeal ensued.

Petitioner asserts that the suspensions were imposed in violation of Education Law '3214 and were excessive. She seeks to have her son's records expunged. Respondents contend that petitioner was afforded due process pursuant to Education Law '3214, and that the suspension was appropriate, given the student's behavior and his anecdotal record. They seek to have the appeal dismissed.

The procedures governing the suspension of student privileges or the imposition of discipline must be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of Allert, 32 Ed Dept Rep 243; Appeal of Forster, 31 id. 443; Appeal of Danison, 31 id. 169; 8 NYCRR '100.2(1)(4)). Additionally, Education Law '3214(3)(d) provides that in suspensions of five days or less:

The record establishes that prior to this student's suspension, petitioner met with the school principal and the superintendent. Petitioner also met with the teacher who reported the incidents. There is no evidence, however, that petitioner was afforded an opportunity, in the presence of the principal, to ask questions of the teacher whose complaints gave rise to the suspensions. As such, the procedures followed in this case did not meet the standard of fairness established by Education Law '3214(3)(d). (See, Appeal of Allert, supra). Accordingly, the appeal must be sustained and the student's record expunged.

I have considered petitioner's other contentions and find them untimely and extraneous to the issue at hand.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondents expunge petitioner's son's records of the five-day suspension imposed at the July 3, 1991 board meeting.

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