Appeals of E.R., on behalf of his son A.R., from actions of the Board of Education of the North Colonie Central School District regarding student discipline.

Decision No. 15,389

(March 21, 2006)

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--In two separate appeals, petitioner challenges the determinations of the Board of Education of the North Colonie Central School District ("respondent") to suspend his son, A.R., from school and from interscholastic athletics. Because both appeals involve the same parties, arise from the same alleged incident and involve similar issues of fact and law, they have been consolidated for decision. The appeals must be sustained in part.

On February 9, 2005, A.R. was allegedly involved in an altercation with another student at respondent's high school. The hall principal telephoned petitioner that day to inform him of the alleged incident, but said that no decision had been reached regarding suspension. He offered petitioner an opportunity to meet with him, the principal and witnesses. Petitioner accepted.

A meeting was scheduled for Friday, February 11, but a family emergency prevented petitioner from attending. Attempts to re-schedule the meeting for Monday, February 14, and Tuesday, February 15, were unsuccessful.

On February 16, 2005, the hall principal again called petitioner, this time to inform him that A.R. was suspended for three days. A.R. was sent home with a suspension order signed by the principal. Also on that date, petitioner received a letter dated February 15, 2005, notifying him that A.R. was suspended from school for three days, February 16, 17 and 18.

By letter dated February 17, 2005, A.R. was also suspended from playing in a number of football games and was put on athletic probation for one year. Petitioner appealed the athletic suspension to respondent's principal, who informed petitioner that the athletic suspension would stand until petitioner's appeal of the academic suspension to the Commissioner was decided. Petitioner appealed the athletic suspension to respondent's superintendent, who responded by stating that A.R. had violated the athletic code of conduct. She informed petitioner that he could schedule a conference with the principal and the athletic director to discuss the proposed suspension.

These appeals ensued. Petitioner's request for a stay of the athletic suspension was denied.

Preliminarily, I must address the reply submitted by petitioner in his second appeal. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Academic Suspension

Petitioner contends that the district did not comply with the due process requirements of Education Law �3214(3)(b)(1) and �100.2(l)(4) of the Commissioner's regulations with respect to the academic suspension. Petitioner asserts that he wanted to meet with the principal and the two teachers who witnessed the incident, but that it was difficult to find a mutually agreeable time to meet due to his work schedule and an intervening family emergency. He claims he did not receive a written notice of suspension until his son was sent home on February 16. He also asserts that his son received no instruction during his three-day suspension, as required by law. Petitioner requests that his son's suspension be annulled and expunged from his record.

Respondent asserts that petitioner was given numerous opportunities to meet with the principal and failed to do so. Respondent further contends that because six days had passed since the incident, the delay in A.R.'s suspension presented a threat of disruption to school discipline and academic affairs.

In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct. Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil's version of events and question complaining witnesses (Education Law �3214[3][b][1], 8 NYCRR �100.2[l][4]; Appeal of R.F., 43 Ed Dept Rep 206, Decision No. 14,972). 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 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 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 written notice of a short-term suspension 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 (8 NYCRR �100.2[l][4]). Commissioner's decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

Where possible, notification shall also be provided by telephone (8 NYCRR �100.2[1][4]). Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of R.F., 43 id. 206, Decision No. 14,972).

There is no showing here that written notice was given prior to the decision to suspend the student as required by statute and regulation. Respondent attempts to justify the lack of prior notice by claiming the delay in punishment of A.R. posed a continuing disruption to its disciplinary process. However, A.R. attended school for another week with no evidence of dangerous or threatening behavior. Therefore, on the record before me, I cannot conclude that A.R.'s behavior was such that respondent was justified in suspending A.R. without prior written notice. Accordingly, the three-day suspension must be annulled and expunged from A.R.'s record.

I also note that while petitioner contends that his son received no alternative instruction during his suspension, the record indicates that A.R. was over compulsory school age at the time. Therefore, respondent was not required to provide such instruction.

Suspension from Interscholastic Athletics

Petitioner claims that respondent failed to follow the procedures governing suspension of student privileges and its appeal process in that he was not given an opportunity to discuss the alleged conduct with the principal. Petitioner also contends that the notice of the athletic suspension is deficient in that it fails to state that parents and students have the opportunity to discuss the conduct with the person or body authorized to impose discipline. Petitioner argues that if A.R.'s academic suspension is expunged, there is no basis for the athletic suspension. Petitioner also argues that there is no evidence that A.R. was involved in a physical altercation. Petitioner requests that the athletic suspension for the 2005 football season be annulled and expunged from A.R.'s record. Petitioner also requests that respondent be estopped from imposing any further athletic suspension based on the alleged incident.

Respondent maintains that petitioner failed to exhaust his administrative remedies because he had time to schedule a meeting to discuss the suspension with the principal and the athletic director prior to its implementation in September.

Petitioner's claim that respondent did not afford his son appropriate due process before imposing the athletic discipline is unfounded. In-school suspensions and suspensions from extracurricular activities are not governed by Education Law �3214 and do not require a full hearing (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794). Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794; Appeal of Denis, 40 id. 306, Decision No. 14,487; Appeal of Michael J.A., 39 id . 501, Decision No. 14,293).

Petitioner was afforded an opportunity to meet with the principal on a number of occasions before the athletic suspension was imposed but was either unable or unwilling to do so. He was also given another opportunity as the result of his appeal to the superintendent. I thus find that petitioner was afforded adequate due process.

Petitioner argues that the athletic suspension is not based on sufficient evidence and that the record is devoid of evidence that A.R. participated in a physical altercation. There is apparently no dispute that another student had a physical altercation with A.R. and was injured in the process. However, petitioner denies that A.R. "participated" in the altercation or any objectionable conduct. 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). Other than his mere assertion on this issue, petitioner has provided no evidence to the contrary or a statement from A.R. denying his participation. Therefore, petitioner has failed to meet his burden of proof, and his claims with respect to A.R.'s suspension from interscholastic athletics must be dismissed.

Petitioner argues that if A.R.'s academic suspension is expunged, there is no basis for the athletic suspension. That is not necessarily so, especially when the academic suspension is expunged on procedural grounds rather than on the merits and where petitioner has failed to meet his burden of proof regarding his son's participation in the alleged conduct which violated the athletic code of conduct.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent remove all references to A.R.'s suspension from February 16 through February 18, 2005 from his records.

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