* Subsequent History: Matter of Fitch v Mills; Supreme Court, Albany County, Special Term (Connor, J.); Judgment dismissed petition to review; July 9, 2004. *

Appeal of R.F., on behalf of his son R.V.F., from action of the Board of Education of the Scarsdale Union Free School District regarding student discipline.

Decision No. 14,972

(October 22, 2003)

Newman Fitch Altheim Myers, P.C., attorneys for petitioner, Robert A. Fitch, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, Ronald Longo, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Scarsdale Union Free School District (“respondent”) to suspend his son from school.  The appeal must be dismissed.

During the 2002-2003 school year, petitioner’s son, R.V.F., was a junior in respondent’s high school.  Shortly after the high school’s September 20, 2002 homecoming dance, the administration received information that a number of students, including R.V.F., had consumed alcohol before the dance.  On October 7, 2002, the high school’s assistant principal spoke to R.V.F., who admitted drinking beer before the dance.  That same day, the high school principal informed R.V.F.’s mother by telephone that he “believed that a suspension was warranted.” 

By letter dated October 7, 2002, the assistant principal informed R.V.F.’s parents that R.V.F. had been assigned a three-day suspension, commencing that day, for appearing at a school function “while under the influence of alcohol.”  The letter further stated that R.V.F.’s parents could request an informal conference with the principal where they would be permitted to present the student’s version of events and ask questions of the complaining witnesses. 

Petitioner met informally with the principal on October 11, 2002 and apparently complained that the penalty was excessive and was imposed in violation of his son’s procedural rights.  After receiving no formal response from the principal, petitioner unsuccessfully appealed his son’s suspension to the superintendent and then to respondent.  This appeal ensued.

Petitioner contends that although his son admitted drinking beer before the dance, there is no evidence that he was actually “under the influence of alcohol” at the dance, as charged.  Petitioner also contends that the suspension was imposed in violation of his son’s due process rights because petitioner did not receive timely written notification of the suspension and did not have an opportunity for an informal conference before the suspension was imposed.  Petitioner also alleges that his son was not provided with alternative instruction during the suspension period. 

Respondent contends that the appeal is untimely and must, therefore, be dismissed.  As to the merits, respondent contends that it properly suspended R.V.F. based on his admission that he had consumed alcohol.  

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR §275.16). Respondent’s district clerk notified petitioner by letter dated November 21, 2002 that respondent had dismissed petitioner’s appeal of his son’s suspension.  Petitioner did not properly commence this appeal until January 21, 2003, well beyond the 30-day period. 

Although petitioner attempted to appeal to the Commissioner by submitting a letter dated December 18, 2002, his submission was returned by my Office of Counsel on January 6, 2003 because it did not comply with the Commissioner’s regulations in several respects, including lack of proof of personal service on respondent (see 8 NYCRR §275.8).  While petitioner asserts that an appeal was timely commenced on December 18, 2002, he does not introduce any proof that he timely served respondent with appeal documents on December 18, 2002. Under these facts, and in the absence of any unusual circumstances, petitioner’s attempt to commence an appeal was ineffective, and does not excuse his failure to commence this proceeding in a timely fashion (see Appeal of Sperduti, 42 Ed Dept Rep ­­  , Decision No. 14,848; Appeal of Cushman, 42 id. ___, Decision No. 14,793; Appeal of Ekpecham, 41 id. 168, Decision No. 14,651).

Education Law §3214(3)(b)(1) provides that in the case of a suspension by a principal, 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 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."  That section further provides:

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. 

Notice of the right to request an informal conference is required under §100.2(l)(4) of the Commissioner’s regulations which states:

(4) 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).  Such notice and informal conference shall be in the dominant language or mode of communication used by the parents or persons in parental relation to the pupil.  Such notice and opportunity for an informal conference shall take place prior to the suspension of the student unless the student’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 notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable. (Emphasis added).

Respondent did not comply with these mandates in several respects.  The record reflects that respondent’s principal notified R.V.F.’s mother by telephone on October 7, 2002 of her son’s suspension.  Further, written notice was sent to R.V.F.’s parents on October 7, 2002 by regular mail.  I have repeatedly held that sending the written notification by regular mail does not satisfy the regulation (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 390, Decision No. 14,722; Appeal of Lloyd, 39 id. 537, Decision No. 14,303; Appeal of J.G., 39 id. 393, Decision No. 14,270).  Moreover, oral communication with parents regarding a suspension is not a substitute for the required written notification (Appeal of a Student Suspected of Having a Disability, supra; Appeal of J.G., supra). Further, because respondent does not allege that the student’s presence in school posed a continuing danger or threat, the principal was obligated to conduct an informal conference before suspending the student (Education Law §3214[3][b][1]). I remind respondent of its obligation to comply with Education Law §3214 and §100.2(l)(4) of the Commissioner’s regulations. 

When a student of compulsory school age is suspended pursuant to Education Law §3214, a school district must act reasonably promptly to provide alternative instruction regardless of the length of the suspension (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep    546, Decision No. 14,553; Appeal of Bridges, 34 id. 232, Decision No. 13,291). It is undisputed that petitioner’s son received no alternative instruction during the three-day suspension. Respondent is further reminded of its obligation to comply with the dictates of Education Law §3214 regarding the provision of alternative instruction to students of compulsory school age.

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

THE APPEAL IS DISMISSED.

END OF FILE