Appeal of S.H., on behalf of her son S.H., from action of the Board of Education of the Patchogue-Medford Union Free School District regarding student discipline.

Decision No. 15,197

(March 30, 2005)

Tarsha C. Smith, Esq., attorney for petitioner

Ingerman Smith, L.L.P, attorneys for respondent, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, S.H., by the Board of Education of the Patchogue-Medford Union Free School District ("respondent"). The appeal must be sustained in part.

S.H.'s suspension arose from an incident at respondent's high school cafeteria on Thursday, November 6, 2003. S.H. allegedly struck two security guards as they tried to remove him from the cafeteria, and he continued to kick and punch at the guards as they attempted to restrain him. S.H. finally accompanied the guards and principal into an adjacent classroom, but continued to curse and yell, overturn desks, throw chairs and spit on the floor. The principal suspended S.H. for insubordination for five days, commencing Friday, November 7, 2003.

The principal avers that petitioner was telephoned as soon as S.H. was removed from the cafeteria and that S.H.'s father called the school about 40 minutes after the incident and spoke with the dean of students. The principal also avers that she spoke by telephone with petitioner on the morning of November 7. The suspension notice, dated November 6, 2003, was mailed by certified mail on Monday, November 10, 2003.

By letter dated November 7, 2003, the superintendent notified petitioner and her husband of a superintendent's hearing scheduled for November 13, 2003. In the afternoon of November 12, 2003, petitioner's attorney requested an adjournment. The hearing was rescheduled for November 17, 2003, at which time petitioner appeared and requested a second adjournment because her attorney was unavailable. The hearing was rescheduled for December 10, 2003, at which time petitioner requested a third adjournment, to a date between December 29 and January 15, 2004, and thereafter commenced this appeal. Petitioner's request for interim relief was denied on December 29, 2003.

The hearing scheduled for January 15, 2004 was canceled due to a snowstorm and rescheduled for February 5, 2004. At that time, petitioner's attorney requested another adjournment until such time as criminal charges against S.H. arising from the same incident were resolved.

Petitioner contends that respondent violated Education Law �3214 and her son's constitutional right to due process. She contends that she was not afforded proper notice of S.H.'s initial five-day suspension. She also claims that she did not receive adequate notice of the November 17, 2003 superintendent's hearing. She further asserts that S.H. was inadequately supervised and protected on the day of the incident, and was provoked, humiliated, taunted, assaulted and battered by district personnel. Petitioner contends that her son was subject to an illegal transfer, that the home instruction provided to him was inadequate, and that her requests for S.H's readmission to school were denied. Petitioner seeks to have S.H. readmitted to school, requests that the five-day suspension be annulled and expunged from S.H.'s record, and seeks a determination precluding respondent from taking further disciplinary action against him.

Respondent contends that the petition fails to state a claim upon which relief may be granted, and maintains that the suspension and notice were proper. Respondent further asserts that petitioner lacks standing with respect to her claims under Education Law �3214(3)(c)(1), and contends that petitioner failed to exhaust administrative remedies. Respondent further alleges that petitioner is responsible for S.H.'s extended time out of school because she requested repeated adjournments of the superintendent's hearing and argues that the principal was not obligated to inform petitioner of the five-day suspension in advance because of the danger S.H. presented.

In addition, respondent states that petitioner requested an adjournment of the superintendent's hearing and agreed to keep S.H. on home instruction until pending criminal charges against him were resolved. Respondent also asserts that although it was not required to provide alternative instruction for S.H. because he is over 16 years of age, it nevertheless provided such instruction.

With regard to S.H.'s initial five-day suspension, respondent's contention that the appeal must be dismissed because petitioner failed to exhaust her administrative remedies is without merit.  Education Law �3214 does not require a petitioner to appeal a suspension of five days or less to the board of education unless a school district has adopted a policy requiring appeals of short-term suspensions to the board of education before appealing to the Commissioner (Appeal of S.C., 44 Ed Dept Rep 164, Decision No. 15,134; Appeal of Amara S., 39 id. 90, Decision No. 14,182).  The record does not demonstrate that respondent has such a policy. Therefore, I will not dismiss petitioner's claims regarding the short-term suspension for failure to exhaust.

In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct. The pupil and the person in parental relation to the pupil must be given an opportunity for an informal conference with the principal. The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger or threat, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable. (Education Law �3214[3][b][1], 8 NYCRR �100.2[l][4]).

The record indicates that S.H.'s actions "pose[d] a continuing danger to persons or property or an ongoing threat of disruption to the academic process" (Id.). Accordingly, the principal was authorized to suspend S.H. without prior notice. However, the statute and regulation require that notice and opportunity for an informal conference "take place as soon after the suspension as is reasonably practicable." In this case, S.H. was suspended commencing Friday, November 7, the principal mailed the notice, by certified mail, on Monday, November 10, and petitioner did not receive the notice until November 15. Thus, S.H. served the entire five-day suspension before petitioner received the written notice. Although petitioner was informed of the suspension by telephone, oral communication with a parent regarding a suspension is not a substitute for the required written notification (Appeal of J.G., 39 Ed Dept Rep 393, Decision No. 14,270). Accordingly, the five-day suspension must be expunged from petitioner's son's records (see, Appeal of A Student with a Disability, 40 Ed Dept Rep 47, Decision No. 14,418; Appeal of J.G., supra).

Petitioner also claims that the notice of the Monday, November 17, 2003 superintendent's hearing was unreasonable because petitioner received the notice on Saturday, November 15, and her attorney did not receive the notice until November 17. However, even if the notice were found unreasonable, petitioner requested and received an adjournment and has failed to demonstrate how she was aggrieved by any delay.

Because this appeal was commenced prior to any superintendent's hearing or disposition, there is no indication in the record whether any further penalty was imposed on S.H. Accordingly, I need not address the parties' remaining arguments concerning the merits of the suspension.

THE APPEAL IS SUSTAINED IS PART.

IT IS ORDERED that respondent's suspension of petitioner's son from November 7, 2003 through November 14, 2003 be annulled and expunged from his record.

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