Appeal of V.R. and C.R., on behalf of their daughter J.R., from action of the North Colonie Central School District regarding student discipline.

 

 

(August 19, 2003)

 

Anne Reynolds Copps, Esq., attorney for petitioners

 

David W. Morris, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioners request that a five-day suspension which is part of their daughter"s permanent school record be expunged.  The appeal must be sustained.

In September 2002, petitioners" daughter, J.R., was a junior at Shaker High School and a member of the girls" varsity swim team.  On Friday, September 27, 2002, the swim team participated in a meet in Elmira, New York, and J.R. shared a hotel room with three other juniors.  At some time prior to 10 p.m., a senior member of the team came to their room with a "hand-rolled cigarette" which she had found in her swim bag, and thought was a joke.  The cigarette was lit, passed around, and ultimately thrown out the window by J.R.  J.R. and two other juniors who were present at the time have submitted affidavits denying that anyone smoked this hand-rolled cigarette.  Shortly thereafter, two swim team coaches visited the room for bed check.  A few minutes later, the two coaches returned with a third coach and asked about the smell in the room.  There are factual disputes with respect to the conversation that occurred, but it is clear that the coaches suspected that the three juniors who were present had been smoking marijuana.

The following morning, additional conversations occurred between the coaches and the three juniors.  The coaches claim that ultimately the three juniors and the senior who had brought the cigarette to the room admitted that they had smoked marijuana.  The next day, Sunday, September 29, the head coach telephoned V.R. and the parents of the other girls involved and advised them of what had occurred.  V.R. and the head coach had a further telephone conversation later that evening.

On Monday, September 30, the four girls who had allegedly admitted smoking marijuana were called out of their classes individually by hall principal William A. Serritella.  It appears that Mr. Serritella took written statements from three of the girls, although none of these statements appears in the record.  Mr. Serritella then contacted each girl"s parents by telephone. 

It appears that C.R. met with Mr. Serritella Monday afternoon.  It further appears that V.R. and the parents of the other girls involved met with Mr. Serritella and the head coach at approximately 5 p.m. that day.  Mr. Serritella advised that the girls would be suspended beginning the following day, Tuesday, October 1, for five school days.

The record contains a suspension notice dated October 1, 2002, signed by James O. Jackson, the high school  principal, suspending J.R. for five days beginning October 1.  The notice states that the reason for suspension was possession of drugs/alcohol.  According to respondent, the notice was mailed to petitioners on October 1, 2002, by registered mail-return receipt requested, but was incorrectly addressed.  When the notice was returned to the school, it was mailed to the correct address on October 7 and received by petitioners on October 8, by which time J.R."s suspension had already been served.

Petitioners raise a number of claims, including allegations that respondent failed to comply with the due process requirements in Education Law "3214(3) and "100.2(l)(4) of the Commissioner"s regulations.

Education Law "3214(3)(b)(1) provides:

The board of education, board of trustees, or sole trustee, superintendent of schools, district superintendent of schools and the principal of the school where the pupil attends shall have the power to suspend a pupil for a period not to exceed five school days.  In the case of such a suspension, the suspending authority shall provide the pupil with notice of the charged misconduct.  If the pupil denies the misconduct, the suspending authority shall provide an explanation of the basis for the suspension.  The pupil and the person in parental relation to the pupil shall, on request, be given an opportunity for an informal conference with the principal at which the pupil and/or person in parental relation shall be authorized to present the pupil"s version of the event and to ask questions of the complaining witnesses.  The aforesaid notice and opportunity for an informal conference shall take place prior to suspension of the pupil unless the pupil"s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the pupil"s notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable.  (Emphasis added)

     Section 100.2(l)(4) of the Commissioner"s regulations provides, in pertinent part:

Parental notice concerning student suspensions.  When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be 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 decision to propose suspension at the last known address or addresses of the parents or persons in parental relation.  Where possible, notification shall also be provided by telephone if the school has been provided with a telephone number(s) for the purpose of contacting parents or persons in parental relation.  Such notice shall provide a description of the incident(s) for which suspension is proposed and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b).  (Emphasis added)

     There are several factual issues raised by the parties in this case, including whether or not J.R. actually admitted possessing marijuana, whether or not the hand-rolled cigarette actually contained marijuana, and whether or not the coaches could identify the smell of marijuana.  There is also the question of mailing written notice pursuant to "100.2(l)(4) to the wrong address, and whether or not mailing by registered mail-return receipt requested complies with the requirement that notice "shall be provided by personal delivery, express mail delivery, or equivalent means recently calculated to assure a receipt of such notice within 24 hours of the decision to propose suspension at the last known address or addresses of the parents or persons in parental relation."

     It is clear that respondent did not comply with the provisions of Education Law "3214(3)(b)(1).  The meeting conducted by hall principal Serritella with petitioners and the head coach on September 30 fails to comply with the statute, because Mr. Serritella was not the high school principal, and was not the person making the decision to suspend the girls.  The statute is explicit that any such informal conference must be "with the principal" (Appeal of A.L., 42 Ed Dept Rep ____, Decision No. 14,883), and that did not happen here.  As noted in Appeal of Jones (35 Ed Dept Rep 1, Decision No. 13,444):

Although the full hearing procedures set forth in Education Law "3214(3)(c) do not apply to short term student suspensions, school districts are required to impose such discipline with fundamental fairness (see, e.g., Appeal of Danison, 31 Ed Dept Rep 169; Appeal of Forster, 31 id. 443; Appeal of Blish, 32 id. 171; Appeal of Allert, 32 id. 242). In the case of short suspensions, the minimum standard of fundamental fairness was partially codified by the adoption of "100.2(l)(4). The purpose of the regulation is to require that persons in parental relationship to a student who is suspended for a short term of five days or less are made aware of the statutory right provided in Education Law "3214(3)(d). That provision requires that persons in parental relationship have the opportunity, if they choose, to question the complaining witnesses in the presence of the principal who imposed the suspension in the first place, and who has the authority to terminate or reduce the suspension. It is insufficient to provide merely an opportunity to speak to the principal without the complaining witnesses present, or an opportunity to speak to the complaining witnesses without the principal present. The purpose of "3214(3)(d) is to allow the principal, at an early date and based upon the questioning in his presence, to decide whether his original decision to suspend was correct or should be modified. That opportunity was not present here, and I am therefore constrained to sustain the appeal (Appeal of Somers, 32 Ed Dept Rep 431; Appeal of Ferguson, 32 id. 494).

Furthermore, the letter to petitioner dated October 1, 2002 (even if it had been correctly addressed) does not meet the requirement cited above.  Written notice of a proposed suspension must be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt within 24 hours of the decision to propose suspension.  Section 100.2(l)(4) clearly indicates that such written notice must be given prior to the suspension of the student, unless the student poses a continuing danger or threat of disruption.  There is no such showing here.  Accordingly, the sending of the written notice on the same day the suspension began, by a form of regular mail, clearly did not meet the requirements of the regulation (Appeal of A.L., supra; Appeal of P.R. and C.R., 41 Ed Dept Rep 48, Decision No. 14,611).

Because the procedure used here did not comply with law and regulation, I am constrained to order that the five-day suspension be annulled and expunged from J.R."s record.

In light of this disposition, I need not address the parties" remaining contentions. 

 

     THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

     IT IS ORDERED that respondent expunge from the records of J.R. any reference to her suspension during the period of October 1 to October 7, 2002.

END OF FILE

---