Appeal of P.R. and C.R., on behalf of R.R., from action of the Board of Education of the Taconic Hills Central School District regarding student suspension.

Decision No. 14,611

(August 3, 2001)

Tabner, Ryan and Keniry, attorneys for petitioner, William F. Ryan, Jr., Esq., of counsel

Ruberti, Girvin & Ferlazzo, attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the actions of the Board of Education of the Taconic Hills Central School District ("respondent") concerning the suspension of their son and request that the suspension be expunged from his record. The appeal must be sustained in part.

On November 20, 2000, petitioners" son was involved in an altercation in the school cafeteria during which he threw a juice can and a lunch tray at another student. When the teacher who was serving as cafeteria monitor intervened, petitioners" son verbally threatened him. As they were exiting the cafeteria, petitioners" son grabbed the teacher around the area of his knees and tried to flip him over. The principal of respondent"s middle school suspended petitioners" son for five days commencing on November 21, 2000, and a superintendent"s hearing was conducted on November 30, 2000. Following his review of the hearing officer"s recommendation, respondent"s superintendent found that petitioners" son engaged in the conduct charged and further determined that the five-day suspension already served by the student was an appropriate penalty. This appeal ensued.

Petitioners assert that the notice concerning the principal"s five-day suspension failed to inform them of their right to ask questions of complaining witnesses and that the notice was not provided within 24 hours of the decision to suspend their son. Respondent argues that the notice was provided within 24 hours of the actual suspension, and that the notice advised petitioners of their right to meet with the principal. Respondent contends that petitioners failed to verify their petition and that the verified petition that they subsequently served was untimely. Respondent also asserts that petitioners failed to exhaust their administrative remedies because they did not appeal to the board of education before filing this appeal.

Section 275.5 of the Commissioner"s regulations requires that all pleadings be verified by at least one of the petitioners. Although the petition initially served upon respondent only contained a verification by petitioners" attorney, a petition properly verified by both petitioners was promptly served and filed when the defect was noted by my Office of Counsel. Respondent does not plead any prejudice resulting from this late submission of petitioners" verification, nor do I find any such prejudice. I have previously declined to dismiss a petition that was not verified by petitioner as initially submitted where there has been no evidence of prejudice to the opposing party (see, Appeal of Christe, 40 Ed Dept Rep ___, Decision No. 14,514). Accordingly, I decline to dismiss this petition on this basis.

Respondent acknowledges that its middle school principal decided to suspend petitioners" son on the evening of November 20, 2000 and that the written notice was not mailed until November 22, 2000. Respondent also acknowledges that the notice did not advise petitioners of their right to question complaining witnesses. Education Law "3214(3)(b)(1) requires that, in the case of a suspension by a principal not exceeding five days, the student and his parents shall, on request, be given an opportunity for an informal conference with the principal at which the student and parents may present the student's version of the event and ask questions of the complaining witnesses. Although the statute further provides that prior notice and the opportunity for an informal conference is not required where a student's presence in school poses a continuing danger, there is no evidence that respondent believed petitioners" son presented any continuing risk. Section 100.2(l)(4) of the Commissioner"s regulations requires that written notice of the suspension be provided immediately by personal delivery, express mail delivery, or equivalent means "reasonably calculated to assure receipt within 24 hours of the decision to propose suspension." In this instance, the middle school principal acknowledges that his written notice was untimely and failed to state that petitioners had the right to question complaining witnesses. Thus, I am constrained to direct the expungement of any reference to the suspension imposed by respondent"s principal (see, Appeal of Deborah P., 39 Ed Dept Rep 433, Decision No. 14,279; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059; Appeal of Milano, 37 id. 472, Decision No. 13,908).

Although the principal"s suspension is deficient for lack of proper notice, respondent"s superintendent provided petitioners with separate notice charging their son with conduct that was disorderly and endangered the safety of other students. Those charges were then sustained at a superintendent"s hearing and a five-day suspension was imposed, with credit for time already served. A superintendent"s determination that a student engaged in the charged misconduct, following a hearing brought pursuant to Education Law "3214(3)(c), is not affected by the annulment of a principal"s initial suspension (see, Appeal of Milano, supra). I note that petitioners raise no objection to the procedure employed by respondent"s superintendent in suspending their son. Thus, I will not annul the superintendent"s determination or expunge the student's record of the superintendent"s determination that the student engaged in the misconduct charged.

Moreover, Education Law "3214(3)(c) provides that the decision of a superintendent to suspend a student following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education. Since petitioners failed to exhaust their administrative remedies, I will not review the superintendent"s determination, and petitioners" request that the suspension be annulled and expunged must be denied.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that any reference to the suspension by respondent"s middle school principal be expunged from the student's records.

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