Decision No. 14,270

(December 21, 1999)

MILLS, Commissioner.--Petitioners challenge the suspension of their son ("J.G.") and request that it be expunged from his record. The appeal must be sustained.

J.G. was a tenth grade student in the district’s high school during the 1996-97 school year. On June 4, 1997, he was suspended from school for allegedly harassing and threatening a teacher. The five-day suspension notification letter required by 8 NYCRR "100.2(l)(4) was sent to petitioners on June 4, 1997, by regular mail. On that same day, J.G.'s mother was called to school and informed that J.G. was being suspended for five school days by the high school principal, Mr. Sigelakis.

Petitioners met with Mr. Sigelakis on June 5, 1997 to discuss the suspension. No one else attended the meeting. The parties' accounts of the meeting conflict. It is undisputed, however, that the meeting resulted in a written agreement between the principal and petitioners. That agreement extended J.G.’s suspension for the duration of the school year and waived petitioners’ right to a superintendent’s hearing pursuant to Education Law "3214, as well as any other administrative and/or judicial proceeding pertaining to the discipline imposed (the "agreement"). Under the agreement, J.G. was permitted to return to school in September 1997. Petitioners further agreed to have J.G. evaluated by a mutually agreed upon psychiatrist, at district expense, and to abide by any treatment recommended by such psychiatrist. During the suspension, the district agreed to provide J.G. with home instruction and allowed him to take all Regents and final examinations. The agreement states that the parties entered into it free of coercion and duress, and that petitioners had the opportunity to consult with an attorney concerning its terms and conditions.

After being told by the district’s administrator for the Committee on Special Education that petitioners could not employ a psychologist of their choice, petitioners obtained counsel on June 23, 1997. By letter dated June 25, 1997, petitioners, through their attorney, asked the superintendent to rescind the agreement and expunge their son’s records. On July 15, 1997, by letter from its attorney, respondent board refused, and directed petitioners to appeal the matter directly to the Commissioner of Education. This appeal ensued. On August 19, 1997, petitioners’ request for interim relief was denied.

Petitioners contend that the district failed to comply with the procedural requirements of "3214(3)(b) and 8 NYCRR "100.2(l)(4). Petitioners further claim that the district failed to provide timely written notification of the suspension and that the informal conference held by the principal was deficient because he did not include J.G. or provide an opportunity to speak to the complaining witnesses. Petitioners further claim that the principal did not inform them of their legal rights prior to entering into the agreement. They also argue that the agreement violates public policy, the Education Law and Commissioner's regulations.

Respondents submit that the petition is time barred. On the merits, respondents contend that the principal's oral notification of petitioners' rights in a telephone conversation on June 4, 1997 and in person at the meeting on June 5, 1997 was sufficient. Respondents further submit that it was reasonable to conclude that the notification letter, sent by regular mail on June 4, 1997, would be received by the petitioners within a twenty-four (24) hour period as required by 8 NYCRR "100.2(l)(4). Respondents also argue that petitioners’ decision to unilaterally select a psychologist was contrary to the agreement. Finally, respondents maintain that parents can knowingly and freely waive any and all rights granted by Education Law "3214.

Before reaching the merits, I will address the issue of timeliness. An appeal must be initiated within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The agreement was entered into on June 5, 1997. Pursuant to Education Law "3214(3)(e), where a student has been suspended for cause, the suspension may be revoked by the board of education whenever it appears to be in the best interest of the school and the student. In addition, for suspensions in excess of five days, an appeal will lie from the decision of the superintendent to the board of education (Education Law "3214[3][c]).

On June 25, 1997, after a dispute arose between petitioners and respondents concerning implementation of the agreement, petitioners asked the superintendent to rescind the agreement and expunge their son’s records. On July 15, 1997, respondents’ counsel advised petitioners that no further appeal at the school district level was necessary and directed petitioners to the Commissioner of Education. Under these facts, I find timely petitioners initiation of this appeal within 30 days of respondents’ refusal to consider petitioners’ request to rescind the agreement.

Education Law "3214(3)(b) provides that, in the case of suspension by a principal for a period not to exceed five days, the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of the complaining witnesses." Notice of the right to request an informal conference is required under the regulations of the Commissioner of Education which provide that "school district officials shall immediately notify the parents or persons in parental relation in writing that the student has been suspended from school. Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension" (8 NYCRR "100.2[l][4]).

Respondents did not use the methods of delivery required by "100.2(l)(4), i.e., personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension imposed. I reject respondents’ assertion that sending the written notice by regular mail satisfies the regulation (Appeal of Milano, 37 Ed Dept Rep 472, Decision No. 13,908). Petitioners claim, and respondents have not refuted, that they received the notification letter on June 7, 1997. Furthermore, although the principal met with petitioners on June 5, 1997 and had ample opportunity to satisfy the regulatory requirement by personally delivering a copy of the written notice to petitioners at that time, he failed to do so. Respondents’ argument that the necessary information was allegedly provided over the telephone and orally at the meeting is not sufficient. The regulation explicitly requires telephone notification in addition to written notice, where possible, and not as a substitute (Id.). Accordingly, the five-day suspension must be annulled and expunged from J.G.’s records (Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Milano, supra).

Although the initial five-day suspension must be overturned, that does not entirely resolve the matter because an additional suspension was imposed as a result of the waiver agreement. As a threshold matter, I reject petitioners’ argument that it is against public policy to ever allow the waiver of the right to a hearing under Education Law "3214. In Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976, I held that Education Law "3214 only requires school districts to afford a student the opportunity, or chance, for a hearing, and that that opportunity may be intelligently, voluntarily and knowingly waived. The "voluntary, knowing and intelligent" standard requires that the person waiving the right must be informed of the right as well as the consequences of waiving the right, and that he or she must freely and purposefully waive the right (Appeals of McMahon and Mosely, et al., supra).

In McMahon, the district used a standard waiver letter that described the right to be waived. While I determined that the right to a hearing under "3214 could be voluntarily and knowingly waived, I found the waiver letter at issue in that appeal deficient in certain respects and ordered the district to modify it to ensure accurate and complete information was provided so that intelligent waivers could be made in the future.

In this case, although the parents' waiver was expressed in a signed agreement, the district did not fully describe the rights to be waived in that agreement or in any other writing. The only evidence provided by respondents is unsubstantiated statements that the principal orally informed petitioners of their rights prior to entering into the agreement. The due process rights of "3214(3)(c) are substantial in that they preserve the student’s constitutionally protected interest in receiving a free public education (Goss v. Lopez, 419 U. S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 [1975]; Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133 [1997]). As such, I find that a district must provide the student and his or her parent or person in parental relation with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights, to effectuate a "3214(3)(c) waiver. An oral presentation of such rights is insufficient because it is virtually impossible to assure or discern that the individual was fully and accurately advised of all of his rights and the consequences of waiving them, and nevertheless freely assented to the waiver. I therefore find in this case that petitioners did not voluntarily, knowingly and intelligently waive their rights under Education Law "3214. Accordingly, the suspension in excess of five days is annulled and expunged from J.G.’s record.

Finally, a lawful waiver may only allow the imposition of penalties that are legally permissible under "3214 (Appeals of McMahon and Mosely, et al., supra). Thus, even if there is a knowing and intelligent waiver of the right to a hearing, the district can impose only those penalties it could legally impose under "3214 had a hearing actually been held. Therefore, I find respondents’ imposition of a psychiatric evaluation and treatment an improper penalty under Education Law "3214 (Appeal of Cynthia and Robert W. and Appeal of Melani and James H., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Alexander, 36 id. 160, Decision No. 13,689). I also remind respondents that if such an examination of any student is warranted in the future, the proper avenue is to refer the student to the district’s Committee on Special Education (CSE) for evaluation (Appeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondents’ suspension of J.G. from June 4, 1997 through the end of the school year be annulled and expunged from his record.

IT IS FURTHER ORDERED that to the extent the district has a waiver policy and procedure in place, respondents shall modify it to comply with Education Law "3214 and with this decision, within 30 days of the date of this decision.

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