Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the South Colonie Central School District and Thomas A. Brown, Superintendent, regarding student discipline.

 

 

(January 23, 2004)

 

Young, Sommer, Ward, Ritzenberg, Wooley, Baker & Moore, LLC, attorneys for petitioner, Kenneth S. Ritzenberg and Michael J. Moore, Esqs., of counsel

 

Tabner, Ryan & Keniry, attorneys for respondents, Tracy L. Bullett and William F. Ryan, Jr., Esqs., of counsel

 

MILLS, Commissioner.--Petitioner appeals the suspension of her son by the Board of Education of the South Colonie Central School District ("respondent board").  The appeal is sustained in part.

During the 2002-2003 school year, petitioner"s son was a junior at the district"s high school.  On January 31, 2003, while outside during a fire drill, petitioner"s son used a racial epithet during a confrontation with several students, including J.J.  An associate principal summoned petitioner to school and informed her that her son would be suspended for five days and given a superintendent"s hearing.  Later that day, petitioner"s son attended a pre-scheduled appointment with a psychologist, whom he had been seeing since at least October 2002.  After the appointment, petitioner telephoned the district"s superintendent to express concern about the safety of her children and the need for her son"s return to school as soon as possible in light of his psychological problem.  During that conversation, the superintendent informed petitioner that her son could not return to school until a hearing, tentatively scheduled for February 4, 2003, could be held.

By letter dated February 3, 2003, the associate principal informed petitioner that her son was suspended for five days beginning on January 31 and including February 3 through 6, 2003.  The letter also informed petitioner that she could request an informal conference with him "at which time . . . [she would] be authorized to ask questions as to events which resulted in this suspension."

In a second letter, also dated February 3, 2003 and hand-delivered to petitioner, the superintendent scheduled a hearing pursuant to Education Law "3214, informed petitioner that her son had been suspended and charged him with "insubordination, violation of the rules and regulations of the school district, and threatening the health and safety of the students and staff at Colonie Central High School . . ."

At the February 4, 2003 hearing, petitioner, her son, the associate principal who suspended him and respondents" attorney were present.  The associate principal testified that prior to meeting with petitioner"s son on January 31 to discuss what happened at the fire drill, he learned that one of petitioner"s son"s teachers had heard other students claim that he had a racial slur etched on his arm.  When the associate principal met with petitioner"s son and inquired about the etching, the student showed the associate principal his arm, which had a slogan including a racial slur scratched on it.  The associate principal also testified that petitioner"s son had admitted directing a racial slur at least one student at the fire drill.  He also testified that petitioner"s son had explained that the other students had approached him first and asked him whether he would stand up for his brother if they went after him.  After petitioner"s son responded that he would, the other students called him names and he retorted with a racial slur.  Then he was pushed into a snow bank.

Petitioner"s son did not testify at the hearing but petitioner agreed that the associate principal"s testimony accurately reflected her understanding of the facts.  Petitioner read into the record her February 2, 2003 letter to the superintendent detailing the course of events leading up to the January 31 incident.  Petitioner stated that this episode was an outgrowth of a series of incidents beginning eight days earlier involving her younger son and several other students, including J.J.

At the hearing, the superintendent stated that he would consult with petitioner"s son"s psychologist prior to rendering his decision.  There is some dispute in the record if and when that consultation occurred.  The superintendent issued his decision in a letter dated February 7, 2003, stating: "Racial slurs cannot and will not be tolerated.  The fact that [petitioner"s son] possesses such a slogan on his person and talked about it to other students creates a volatile and unsafe situation in the school.  Further disciplinary action beyond the five days is warranted."  The superintendent suspended petitioner"s son through the end of the 2002-2003 school year, and conditioned his re-entry in August 2003 upon his provision of "evidence that he has continued counseling and undergone sensitivity training."

By letter dated February 12, 2003, the superintendent informed petitioner that respondent board had affirmed his decision to suspend her son for the balance of the 2002-2003 school year.  This appeal ensued.  Concurrently, petitioner requested a referral to the district"s Committee on Special Education ("CSE").  Petitioner"s request for interim relief was denied on March 12, 2003.

Petitioner asserts that her son has a psychological condition, is on medication and as such, is educationally disabled.  Petitioner asserts further that respondents knew or should have known that her son is and was a student with an educational disability, that he should have been afforded the protections under the Individuals with Disabilities Education Act ("IDEA") and "504 of the Rehabilitation Act, and that his long-term suspension abrogated his rights under the IDEA and "504.

Petitioner also asserts that respondents failed to provide written notice in advance of her son"s suspension, provided insufficient notice of the hearing, violated her due process rights by failing to afford her an opportunity to appeal to respondent board and violated her son"s First and Fourth Amendment rights under the Constitution.  She contends that her son was improperly suspended for an offense that was not included in the charges against him, namely, that he had a tattoo.

Petitioner also contends that the penalty imposed is excessive in light of her son"s disciplinary record.  She maintains it exceeds the penalty for verbal harassment in the district"s code of conduct and asserts that the racial slur used is commonly used in rap music and other exchanges among teenagers without pejorative meaning.

Petitioner also asserts that on February 6, 2003, the director of pupil services directed her son"s teachers to make his assignments available for tutoring through June 16, 2003, even though the superintendent had not yet rendered his decision.  Petitioner seeks her son"s return to school and expungement of the suspension from his record.  Petitioner also seeks a refund of money expended for an automotive technology course that her son was forced to drop because of the suspension.

Respondents assert that petitioner fails to state a cause of action, maintain that petitioner was afforded proper notice of her procedural due process rights, and that the suspension was proper.

I must first address two procedural issues.  Respondents object to petitioner"s April 7, 2003 submission of an affidavit from her son"s psychologist, attached as an appendix to petitioner"s memorandum of law.  Petitioner objects to respondents" May 2, 2003 submission of a reply memorandum in response to her April 7, 2003 memorandum.

The Commissioner, in his discretion, may permit the filing of additional papers (8 NYCRR "276.5).  Because the affidavit from petitioner"s son"s psychologist addresses specific statements contained in the superintendent"s Affidavit in Opposition to Petitioner"s Application for a Stay, I will accept it.  Similarly, to the extent that respondents" reply memorandum addresses new allegations and facts raised in petitioner"s memorandum, I will accept it.  However, a memorandum may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of D.C., 41 Ed Dept Rep 190, Decision No. 14,661; Appeal of Muench, 38 id. 649, Decision No. 14,110).  Accordingly, I have not considered those portions of respondents" reply memorandum that raise new arguments or contain new allegations that are not responsive to new material or new arguments set forth in petitioner"s memorandum.

Since petitioner"s son was suspended for the remainder of the 2002-2003 school year, which has ended, the appeal is moot except to the extent that petitioner seeks expungement of his records (Appeal of M.K., 42 Ed Dept Rep ___, Decision No. 14,894; Appeal of Mace, 40 id. 110, Decision No. 14,433).  In addition, pursuant to an April 22, 2003 order of an impartial hearing officer, petitioner"s son returned to school on May 1, 2003.  Accordingly, petitioner"s request that her son be returned to school is also moot.

Regarding the initial five-day suspension of petitioner"s son, respondents failed to comply in several respects with the provisions of Education Law "3214 and "100.2(l)(4) of the Commissioner"s regulations.  Respondents are mistaken, as they assert in their memorandum of law, that the superintendent "has the power to suspend a student for a period of at least five days without a hearing.  Thereafter, notice must be provided to the student of charged misconduct."  To the contrary, and as I recently noted in another appeal concerning this district (Appeal of J.L., 42 Ed Dept Rep ___, Decision No. 14,842, Lewtschenko v. Mills, et al., Supreme Court, Albany County, Special Term; Lamont, J.; Judgment granted dismissing petition to review, October 27, 2003, n.o.r.), the statute and regulation generally provide that written notice must be provided prior to the suspension.  Education Law "3214(3)(b)(1) provides that in the case of a suspension up to five days in length:

The suspending authority shall provide the pupil with notice of the charged misconduct....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...(emphasis added).

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

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....Such notice shall provide a description of the incident(s) for which suspension is proposed and shall inform the parents...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 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.)

The purpose of this section is to make the parents of a student suspended for five days or less aware of the statutory right provided in Education Law "3214(3)(b) to question the complaining witnesses in the presence of the principal who proposed 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.

The record indicates that respondents failed to provide written notice to petitioner before her son was suspended.  Indeed, the letter from the associate principal was dated February 3, 2003, three days after the suspension.  Moreover, respondents do not affirmatively allege that petitioner"s son"s presence in school posed a continuing danger or an ongoing threat of disruption to the academic process, so as to justify an immediate suspension followed by notice (see Education Law "3214[3][b][1] and 8 NYCRR "100.2[l][4]).

The record also indicates that respondents" written notice was not 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, as generally required by  "100.2(l)(4).  I have repeatedly held that sending the written notice 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 J.G., supra; Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059).

The associate principal"s letter offered petitioner an opportunity to request an informal conference "with [him] to ask questions as to events which resulted in this suspension."  However, petitioner is entitled to request an informal conference with the principal, not the associate principal, and to question complaining witnesses.  Although petitioner met with the associate principal on January 31, 2003, and he refers in his letter to this meeting as a "parental conference," this meeting did not comply with the statute or regulation, since the principal did not attend and petitioner was not permitted to question complaining witnesses.

Moreover, the associate principal imposed the suspension on January 31 and signed the suspension letter on February 3.  Although the associate principal stated at the hearing that he consulted with the principal before he suspended petitioner"s son, there is no written indication in the record that he consulted the principal or that the principal approved the suspension.  The statute does not authorize an associate principal to suspend students; nor does it authorize the principal to delegate his authority to suspend (Appeal of E.R., 40 Ed Dept Rep 599, Decision No. 14,565; Appeal of Pinckney, 37 id. 284, Decision No. 13,860).

Respondents" failure to comply with Education Law "3214(b)(3) and its implementing regulationcompels the expungement of petitioner"s son"s five-day suspension from his record.  Respondents are reminded of the need to fully comply with all laws and regulations governing the discipline of students in the future.

Although the initial five-day suspension must be expunged, that does not entirely resolve the matter because a subsequent superintendent"s hearing was held and an additional suspension was imposed.  Petitioner contends that the superintendent"s letter, dated February 3, 2003, provided her only one day"s notice of the hearing, and thus denied her due process under Education Law "3214.  Education Law "3214 requires a fair hearing, upon reasonable notice.  The requirements of adequate notice vary in proportion to the circumstances of the event (Appeal of Harkola, 38 Ed Dept Rep 769, Decision No. 14,139; Appeal of Alexander, 36 id. 160, Decision No. 13, 689).  One day"s notice has, in the past, been determined to be insufficient (Carey v. Savino, 91 Misc.2d 50; Appeal of Eisenhauer, 33 Ed Dept Rep 604, Decision No. 13,163).

In this case, respondents assert and petitioner does not dispute that petitioner contacted the superintendent by telephone on January 31.  Respondents further assert that during that conversation, petitioner and the superintendent agreed on a tentative hearing date of February 4 as an accommodation to petitioner"s schedule.  I find therefore, under the facts presented here, that petitioner had more than one day"s notice and that the notice was sufficient (Appeal of J.D., 39 Ed Dept Rep 593, Decision No. 14,322; Appeal of Harkola, supra; Appeal of Alexander, supra).  Moreover, I note that, at the February 4 hearing, petitioner did not raise or object to the issue of timely notice (see, Appeal of J.D., supra).

Petitioner next contends that she had insufficient notice of the charges against her son.  What constitutes "reasonable notice" will vary with the circumstances of each case (Bd. of Educ., Monticello C.S.D. v. Commissioner of Education, 91 NY2d 133).  However, the charges need only be sufficiently specific to advise the student and counsel of the activities or incidents which have given rise to the proceedings and which will form the basis of the hearing (Application of R.S., 38 Ed Dept Rep 419, Decision No. 14,065; Appeal of Pinckney, supra).  Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings.  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ., Monticello C.S.D., supra).

The superintendent"s February 3 letter charged petitioner"s son with "insubordination, violation of the rules and regulations of the school district, and threatening the health and safety of the students and staff at Colonie Central High School in that on January 31, 2002, he made a racial slur to several minority students during a fire drill."  Although neither that letter nor the statement of charges read at the commencement of the February 4 hearing mentioned a tattoo or etching on his arm, or that such etching contributed to the incident, under the circumstances of this case, petitioner and her son had sufficient notice that he was charged with improper behavior and use of racial slurs and had ample opportunity to defend against such charge (see, e.g., Appeal of Mace, supra).  However, I encourage respondents to more carefully consider and craft the notice of charges in future disciplinary proceedings.

A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ., Monticello C.S.D., supra; Bd. of Educ. of City School Dist of City of New York v. Mills, 293 AD2d 37; Appeal of T.N., 42 Ed Dept Rep ___, Decision No. 14,836).  In this case, although petitioner"s son declined to testify at the hearing, neither he nor petitioner denied that he had used a racial epithet or that he had a racial slogan etched on his arm.  Thus, there is no dispute that petitioner"s son participated in the objectionable conduct and his guilt is not at issue.

Petitioner does dispute the severity of the penalty imposed.  However, I need not address this issue because petitioner"s son was suspended for the remainder of the 2002-2003 school year and the school year has concluded.  Moreover, he returned to school on May 1, 2003, after an impartial hearing officer concluded that he was entitled to attend school during the pendency of due process proceedings to determine whether he is a student with a disability and whether his behavior was a manifestation of that disability.  I note that in Application of the Bd. of Educ. (Appeal No. 03-085) dated October 27, 2003, the State Review Officer concluded that petitioner"s son is a student with a disability, and that respondent"s CSE should have made a manifestation determination before suspending him.  This determination is not subject to review in an appeal pursuant to Education Law "310.

In light of the above disposition, I need not address the parties" remaining arguments.  However, I urge respondents to review prior Commissioner"s decisions regarding participation in counseling (seeAppeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 390, Decision No. 14,722; Appeal of Jayme K., 40 id. 114, Decision No. 14,434).

 

THE APPEAL IS SUSTAINED IN PART.

 

IT IS ORDERED that the five-day suspension of petitioner"s son from January 31 through February 5, 2003 be annulled and expunged from his record.

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