Appeal of T.L. and W.L. from action of the Board of Education of the Patchogue-Medford Union Free School District regarding student discipline.

Decision No. 15,576

(April 26, 2007)

Berger & Brandow, LLP, attorneys for petitioners, Deborah Berger, Esq., of counsel

Guercio & Guercio, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

MILLS, COMMISSIONER.--Petitioners appeal the suspension of W.L. by the Board of Education of the Patchogue-Medford Union Free School District (“respondent”).  The appeal must be dismissed.

On or about November 29, 2006, the high school’s dean of students reported to the assistant principal that two female students claimed that W.L., a senior at respondent’s high school, had engaged in sexual misconduct at school.  On November 30, 2006, the assistant principal interviewed the two female students, notified the police and contacted T.L., W.L.’s father, to inform him of the allegations.

On November 30, 2006, notice of a December 7, 2006 superintendent’s hearing was hand-delivered to T.L. at his home.  T.L. and W.L. attended the superintendent’s hearing, and by letter dated December 7, 2006, the superintendent notified W.L. and T.L. that he had found W.L. guilty and had assigned him to the district’s alternative instruction program.  By letter dated December 21, 2006, petitioners appealed the superintendent’s decision.

By letter dated January 26, 2007, respondent granted petitioners’ appeal in part, vacating the superintendent’s finding and penalty and granting a new hearing.  This appeal ensued.  By letter dated January 28, 2007, petitioners requested that the new hearing be postponed pending the outcome of their request for interim relief in connection with this appeal.  Respondent agreed to the adjournment.  Petitioners’ request for interim relief was denied on February 8, 2007.

By letter dated March 9, 2007, petitioners withdrew those portions of their petition appealing the suspension of W.L. in excess of five days.  With respect to the five-day suspension, petitioners contend that respondent did not comply with the Education Law and Commissioner’s regulations and request that W.L.’s record be expunged.  Respondent argues that petitioners failed to join the principal as a necessary party and failed to state a claim upon which relief may be granted.  Respondent also urges that petitioners’ memorandum of law be disregarded because it was submitted before respondent submitted its answer.

I must first address petitioners’ memorandum of law.  Petitioners originally submitted their memorandum of law with their petition on January 30, 2006.  Pursuant to §276.4 of the Commissioner’s regulations, petitioners were required to serve a copy of their memorandum of law upon respondent and file the memorandum with proof of service, within 20 days after service of the answer.  While §276.4 specifies the time after which a memorandum of law will not be accepted as part of an appeal, it does not indicate that a memorandum of law submitted prior to that time must be disregarded.  Therefore, I have considered petitioners’ memorandum of law.

Respondent claims that petitioners failed to join the principal as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner seeks no relief as against the principal.  Therefore, he is not a necessary party to this appeal.

Turning to the merits, 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 purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, 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 or her original decision to suspend was correct or should be modified (Appeal of R.M. and L.M., 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).

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).

W.L.’s short-term suspension began on December 1, 2006.  Petitioners maintain that they did not receive written notice of the short-term suspension until December 4, 2006 when T.L. went to the high school to obtain a copy of W.L.’s anecdotal record.  However, respondent claims that T.L. received the principal’s letter and W.L.’s anecdotal record when he visited the high school’s main office on December 1, 2006 within 24 hours after the suspension was imposed.  Respondent submitted its “Front Lobby Visitor Sign-In Sheet” from December 1, 2006, which indicates that T.L. entered the building and showed photo identification at 1:25 p.m. and that he exited the building at 1:30 p.m.

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Because petitioners have failed to meet their burden, I cannot find that the written notice of W.L.’s five-day suspension was untimely.

THE APPEAL IS DISMISSED.

END OF FILE