Appeal of D.S. and D.S., on behalf of their son N.S., from action of the Board of Education of the West Genesee Central School District and Superintendent Rudolph Rubeis regarding student discipline.

Decision No. 15,327

(November 23, 2005)

David M. Pellow, Esq., attorney for respondents

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the West Genesee Central School District ("respondent board") and Superintendent Rudolph Rubeis to suspend their son, N.S., from school. The appeal must be dismissed.

During the 2003-2004 school year, N.S. attended the district's senior high school. On November 7, 2003, N.S. punched another student in the face. The principal suspended N.S. for five days and referred the matter to the superintendent.

On November 17, 2003, a hearing officer conducted a superintendent's hearing pursuant to Education Law �3214. The hearing officer reported that N.S. pled guilty to the charges and recommended that he be suspended through January 30, 2004. By letter dated November 17, 2003, the superintendent adopted the hearing officer's recommendation. Petitioners appealed to respondent board. By letter dated January 13, 2004, respondent board upheld the superintendent's determination. This appeal ensued.

Petitioners contend that N.S. acted in self-defense. They claim, among other things, that the suspension was excessive and that N.S. was denied his due process rights. Petitioners request that their son's record be expunged.

Respondents contend that the appeal is untimely and moot. Respondents further contend that they were not served with the exhibits referred to in petitioners' "notice of petition" and therefore those documents should not be considered in this appeal. Additionally, respondents request that I reject petitioners' reply as untimely. Respondents maintain that their determination was in all respects proper and that the penalty is appropriate.

I must first address the procedural issues. 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 any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).

Respondents assert that the appeal must be dismissed as untimely because petitioners did not serve the petition until February 17, 2004, 35 days after respondent board issued its determination. In their answer, respondents assert, upon information and belief, that petitioners received the decision no later than January 15, 2004. However, there is no evidence in the record to indicate when petitioners actually received the determination. As such, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be January 17, 2004. Petitioners should have commenced the appeal on or before February 16, 2004, which was a public holiday. However, when the 30-day period ends on a Saturday, Sunday or a public holiday, the petition may be served on the next succeeding business day (see General Construction Law �25-a [1]). Consequently, the appeal is timely.

Respondents argue that the appeal should be dismissed as moot. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or in which subsequent events have laid to rest. (Appeal of T.C., 44 Ed Dept Rep 316, Decision No. 15,186; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of D.T. and M.M., 43 id. 58, Decision No. 14,916). In this appeal, petitioners request that their son's records be expunged. I find, therefore, that a current controversy remains and I will not dismiss the appeal as moot.

I must also address petitioners' reply. A reply shall be served within ten days after service of the answer to which it responds (8 NYCRR �275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the ten-day period (id.).Respondents' answer was served by mail on March 8, 2004. Therefore, petitioners' reply was to be served on or before March 22, 2004. Petitioners served their reply on March 24, 2004. Accordingly, petitioners' reply is untimely and I have not considered it.

In addition, I have not considered the exhibits attached to petitioners' notice of petition because petitioners did not serve a copy of those documents on respondents. Section 275.8 of the Commissioner's regulations specifically states: "A copy of the petition, together with all petitioner's affidavits, exhibits, and other supporting papers . . . shall be personally served upon each named respondent . . . ." The failure to serve the exhibits on respondents denied them a meaningful opportunity to respond to the contents contained therein and present a defense in this appeal (seeAppeal of Wells, 35 Ed Dept Rep 367, Decision No. 13,573).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). In light of the exclusion of the documents described above, I am constrained to consider only the "notice of petition" in determining whether petitioners satisfied their burden. That document consists largely of conclusions of law and unsubstantiated allegations that respondents deny. Accordingly, I find that petitioners have failed to meet their burden and the appeal must be dismissed.

Even if I were able to consider petitioners' exhibits, I would dismiss the appeal. Education Law �3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf. The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133).  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. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of a Student with a Disability, 39 Ed Dept Rep 427, Decision No. 14,278).

What constitutes "reasonable notice" varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of a Student Suspected of Having a Disability 41 id. 253, Decision No. 14,678).  One day's notice has been held inadequate to provide an opportunity for a fair hearing (Carey v. Savino, 91 Misc.2d 50; Appeal of Eisenhauer, 33 Ed Dept Rep 604, Decision No. 13,163).

Petitioners assert, in conclusory fashion, that respondents violated their son's due process rights by failing to provide them with proper notice to allow them to present witnesses and evidence at the hearing. In their answer, respondents claim that written notice was provided to petitioners by letter dated November 13, 2003. Petitioners failed to submit a copy of that notice into the record or to provide evidence of any specific deficiencies contained therein. Moreover, I note that N.S. and his mother were present at the November 17, 2003 hearing, acknowledged receipt of the November 13, 2003 notice, and did not raise or object to its timeliness or content (Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of a Student with a Disability, 43 id. 372, Decision No. 15,021). Also, at no point during the hearing did N.S. or his mother indicate that they wanted to call witnesses and present evidence or request an adjournment to do so. Therefore, petitioners failed to meet their burden of proving that respondents' notice was deficient or unreasonable.

As to the finding of guilt, there is sufficient evidence to sustain the charges based on N.S.'s own statement and the statement of the assistant principal who was present at the hearing and available for cross examination. The 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. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107). Where a student admits the charged conduct, the admission is sufficient proof of guilt (seee.g.Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960; Appeal of P.K., 41 id. 421, Decision No. 14,733).

In this appeal, N.S. admitted punching a student, but claimed that it was done in self-defense. According to N.S.'s written statement "Friday we got into a fight, he said that he wanted to fight me right then and there and so I punched him in the face. If I didn't then he would have hit me. So I defended myself the best way I knew how." The night before the incident the other student allegedly called N.S. derogatory names. No other self-defense evidence was presented at the hearing and N.S.'s statement alone does not establish that he acted in self-defense. Accordingly, I find no basis to overturn respondents' finding of guilt.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved. The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976). Petitioners' son was suspended from school for ten weeks and placed on probation subject to disciplinary action by the superintendent for future misconduct. In light of the seriousness of N.S.'s conduct, I do not conclude that a ten-week suspension was unreasonable.

With respect to the student's probation, the record appears to indicate that his placement on probation means that, in the event that student became involved in any similar behavior in the future, he would face immediate disciplinary action by the superintendent. All students are subject to disciplinary action pursuant to Education Law �3214 for engaging in inappropriate behavior, whether or not they are on probation. In this instance, there is no evidence that the student would face automatic discipline without full due process as required pursuant to Education Law �3214, therefore, I do not find respondents' determination to place this student on probation unreasonable (Appeal of James B., 32 Ed Dept Rep 637, Decision No. 12,940). Under the circumstances, I find no basis to disturb respondents' finding of guilt or penalty determination.

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

THE APPEAL IS DISMISSED.

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