Appeal of L.H., on behalf of her daughter L.H., from action of the Board of Education of the West Irondequoit Central School District regarding student discipline.

 

Decision No. 15,005

(December 23, 2003)

 

Harris Beach LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the suspension of her daughter, L.H., by the Board of Education of the West Irondequoit Central School District ("respondent").  The appeal must be sustained in part.

During the 2002-2003 school year, L.H. attended Irondequoit High School in respondent"s district.  On February 28, 2003, L.H. was suspended for giving another student Paxil, a prescription drug.  She was placed on in-school suspension for the remainder of the day.  On Monday, March 3, the high school principal telephoned petitioner and informed her that L.H. had been suspended as a result of the foregoing incident.

By letter dated March 5, a district hearing officer notified petitioner that a superintendent"s hearing pursuant to Education Law "3214 was scheduled on March 7.  L.H. was charged with "disorderly student conduct, which endangers the health and safety of [herself] and others," based on her giving Paxil to another student.  On March 7, petitioner contacted the hearing officer and requested adjournment of the hearing to the following week.  The request was granted, and petitioner"s attorney subsequently sought and received another adjournment to March 27, 2003.

A superintendent"s hearing was held on March 27 and 28, 2003 before the hearing officer.  By letter dated March 27, 2003, the superintendent notified petitioner of his determination that L.H. was guilty of the charge and  that, based on the seriousness of the offense, L.H. was suspended for 20 weeks.  The letter indicated that the time L.H. was out of school subsequent to the initial five-day suspension would be deemed "time served" and she would return to school on October 13, 2003.  Finally, the letter notified petitioner that L.H. had the opportunity, if she wished, to "earn back" up to 13 weeks" suspension time provided certain criteria were met.  The criteria included 35 hours of community service, three negative drug screens, a drug assessment and weekly meetings with a guidance counselor.

Petitioner appealed the superintendent"s decision to respondent.  By letter dated May 5, 2003, respondent upheld the suspension.  Respondent"s letter included a reference to a charge of insubordination as well as disorderly conduct.  L.H. was readmitted to respondent"s high school on May 27, 2003, based on her decision to participate in respondent"s program to earn back long-term suspension time.  On June 3, 2003, petitioner commenced this appeal.

Petitioner argues that the five-day suspension should be annulled because the district failed to provide her with written notice of the suspension or her right to an informal conference with the principal prior to imposing the initial suspension.  Petitioner also challenges, on procedural grounds, the suspension imposed as a result of the superintendent"s hearing.  Petitioner claims she did not receive timely notice of the hearing, that the superintendent issued his decision prior to completion of the hearing, that respondent based its determination on an additional charge not noticed or addressed at the hearing, and that respondent impermissibly conditioned L.H."s return to school upon her participation in counseling and completion of community service.  She seeks  expungement of the suspension, in whole or in part.  Respondent asserts that the appeal is moot and that L.H."s suspension until May 27, 2003 was not affected by procedural error.  Thus, respondent maintains there is no basis for expungement.

Before considering the merits of the appeal, I will address two procedural issues.  Petitioner"s reply contains new allegations and claims not set forth in her petition.  A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Gehl, et al., 42 Ed Dept Rep ___, Decision No. 14,857; Appeal of Karpen, 40 id. 199, Decision No. 14,460).  Accordingly, while I have reviewed petitioner"s reply, I have not considered those portions that are not responsive to new material or affirmative defenses in respondent"s answer (see, 8 NYCRR ""275.3[a] and 275.14).

Respondent contends that since L.H. returned to school on May 27, 2003 and her records reflect her suspension only until that date, the appeal is moot.  The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of M.F. and J.F., 43 Ed Dept Rep ___, Decision No. 14,960; Appeal of a Student Suspected of Having a Disability, 41 id. 253, Decision No. 14,678).  Although L.H. was re-admitted to school, petitioner seeks expungement of the suspension, in whole or in part, from the student"s record.  Therefore, the appeal is not moot.

The appeal must be sustained in part.  When a principal proposes to suspend a student from attendance for a period of five days or less, "100.2(l)(4) of the Commissioner"s regulations requires that immediate written notice be provided to parents to advise them of the reason for the proposed suspension and their right to an immediate informal conference with the principal.  The purpose of this regulation is to ensure that parents of a student suspended for five days or less are made aware of the statutory right provided in Education Law "3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his original decision to suspend was correct or should be modified (Appeal of M.F. and J.F., supra; Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 542, Decision No. 14,552).  Education Law "3214(3)(b)(1) provides that written notice and an opportunity for a conference must take place prior to the suspension unless the student presents a continuing danger or ongoing threat of disruption. 

In this case, respondent concedes it failed to provide written notice of the suspension and petitioner"s right to request an immediate informal conference, as required by the Commissioner"s regulation.  Accordingly, the five-day suspension must be expunged from L.H."s record (Appeal of M.F. and J.F., supra; Appeal of Coleman, 41 Ed Dept Rep 101, Decision No. 14,628).  I note that respondent asserts that it will comply with this procedural requirement in the future.

Petitioner also claims respondent failed to provide her with timely notice of the superintendent"s hearing.  Petitioner asserts that she did not receive written notice of the March 7, 2003 superintendent"s hearing until March 6, 2003, when she received a faxed copy of a letter dated March 5, 2003 from the district"s hearing officer.  The letter referenced an old address of petitioner"s within the school district.  Because of the confusion over petitioner"s address, she received notice only one day prior to the hearing.  However, the hearing officer granted petitioner"s request to adjourn the hearing for one week, as well as petitioner"s attorney"s subsequent request to adjourn the hearing until March 27, 2003.Education Law "3214(3)(c) provides:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice" (emphasis supplied).

One day"s notice has been held inadequate to provide an opportunity for a fair hearing (Appeal of Eisenhauer, 33 Ed Dept Rep 604, Decision No. 13,163).  However, in this case petitioner obtained an adjournment of almost three weeks and had sufficient time to retain counsel.  Under these circumstances, L.H. was not prejudiced by the deficient  notice or deprived of her right to an opportunity for a fair hearing.  Therefore, expungement of the suspension on that basis is unwarranted.  Respondent is reminded of its obligation to ensure future compliance with the notice requirements of Education Law "3214(3)(c).

     Petitioner alleges that the superintendent made his determination prior to the completion of the superintendent"s hearing on March 28, 2003.  In support of her allegation, petitioner cites the fact that the superintendent"s letter notifying her of L.H."s suspension is dated March 27, 2003.  Respondent asserts that the date is a typographical error and the letter was actually sent after the hearing was completed.  In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of M.F. and J.F., supra).  In support of her contention, petitioner submits a copy of a May 6, 2003 letter issued by the superintendent regarding another student"s suspension.  Petitioner alleges that the letter also was received by that student"s parents prior to the conclusion of the superintendent"s hearing.  However, petitioner does not submit an affidavit from those parents in support of this claim.  Moreover, review of the superintendent"s letter to petitioner contains information he could not have known until the conclusion of the hearing on March 28, 2003.  Therefore, I find this claim to be without merit.

     Petitioner also complains that respondent"s May 5, 2003 letter upholding the superintendent"s determination to suspend L.H. references a charge of insubordination for the first time.  Respondent acknowledges that error and states that all references to insubordination have been deleted from L.H."s disciplinary records.  Therefore, that portion of petitioner"s appeal is moot (Appeal of M.F. and J.F., supra).

     Finally, petitioner contends that respondent improperly conditioned L.H."s return to school upon her participation in counseling services and community service.  Respondent denies the allegation, asserting that L.H. was suspended as a result of the superintendent"s hearing for a defined period of time " until October 13, 2003.  Respondent contends that L.H. was merely given the option to "earn back" up to 13 weeks of the suspension time if she chose to meet the above-noted criteria.   Apparently, L.H. elected to participate in the program and was re-admitted to school on May 27, 2003.

While the use of agreements or contracts in the context of student disciplinary proceedings may be permissible under certain conditions, an agreement such as that presented here is not.  In Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419, I upheld the use of a contract of conduct for a student who had been suspended after a superintendent"s hearing in January 2000 for the remainder of the 1999-2000 school year.  Pursuant to that contract of conduct, the student was  readmitted to the classroom on January 31, 2000, on probation, upon certain conditions.  The contract stayed imposition of the remainder of the suspension, upon the understanding that any violation of school rules would result in a re-imposition of the underlying suspension without the necessity of an additional hearing.  I found that the use of such a contract of conduct was permissible as a way for the student to ameliorate the suspension by agreeing to certain conditions in return for probationary reinstatement into the classroom, because none of the conditions in the contract imposed any special rules or regulations on the student that were not similarly imposed on his fellow students (Appeal of Spensieri, supra; Appeal of Bowen, 35 Ed Dept Rep 136, Decision No. 13,491; Appeal of Homick, 34 id. 150, Decision No. 13,265).

Here, to ameliorate the suspension imposed upon her, L.H. was required to meet certain criteria " participation in community service, counseling and drug screenings " to which other students are not subjected. Moreover, it is well settled that a school district cannot condition a student"s return to school on participation in counseling or community service (Appeal of R.M. and L.M., 43 Ed Dept Rep ___, Decision No. 14,951; Appeal of a Student Suspected of Having a Disability, 41 id. 390, Decision No. 14,722; Appeal of Jayme K., 40 id. 114, Decision No. 14,434; Appeals of McMahon and Mosely, et al., 38 id. 22, Decision No. 13,976).  Thus, respondent"s practice of permitting a student to "earn back" long-time suspension by meeting the above-referenced criteria, therefore, is improper.

I note that L.H. has already "earned back" a portion of the long-term suspension and returned to school on May 27, 2003.  Respondent indicates her record has been adjusted to reflect only the actual period of time she was suspended from school.  Therefore, that portion of petitioner"s appeal is moot (Appeal of M.F. and J.F., supra).  Nevertheless, respondent should ensure that its future student discipline practices are in compliance with this decision.

 

THE APPEAL IS SUSTAINED IN PART.

 

IT IS ORDERED that respondent remove all references to L.H."s suspension during March 3-7, 2003 from her records.

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