Appeal of K.H., on behalf of her daughter S.H., from action of the Board of Education of the East Bloomfield Central School District regarding student discipline.

Decision No. 16,004

(December 16, 2009)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the suspension of her daughter, S.H., by the Board of Education of the East Bloomfield Central School District (“respondent”).  The appeal must be dismissed. 

During the 2008-2009 school year, petitioner’s daughter was 15 years old and attended the 10th grade at respondent’s high school.  On January 23, 2009, a pre-arranged search of student lockers was performed by respondent in cooperation with the Ontario County Sheriff’s Office.  Based on an alert by one of the sheriff’s dogs, the high school resource officer and principal opened a locker belonging to another student, finding among other things a container with S.H.’s prescription medication, fluoxetine.  The two students were then asked to report to the principal’s office where they were questioned.  S.H. stated that she had given the medication to the other student to “hold” and the other student agreed with this statement.  S.H. was suspended for five days beginning January 26, 2009. 

By Notice dated January 23, 2009, the superintendent informed petitioner that a hearing would be held on February 2, 2009.  At the superintendent’s hearing, S.H. admitted to giving her prescription medication to another student, causing disruption of the educational process.  S.H. also testified that she was aware of school district policy that prescription medications needed at school must be brought to and dispensed by the school nurse.  Following testimony by the principal, the hearing officer made a finding that S.H. was guilty of giving her prescription medication to another student and asked the principal to recommend a penalty.  The principal recommended an additional suspension to be held in abeyance if S.H. received drug counseling.  Petitioner indicated at the hearing that she would be willing to have S.H. pursue counseling.

The hearing officer submitted written findings of fact and recommendation as to penalty to the superintendent on February 3, 2009.  The hearing officer recommended that S.H. be suspended for an additional 20 days.  He further recommended that the suspension be held in abeyance and S.H. be allowed to return to school immediately provided that S.H.: undergo drug counseling on a regular basis; provide a written release allowing respondent to communicate with the counselor regarding S.H.’s attendance and progress; and fully comply with respondent’s code of conduct. 

On February 3, 2009, the superintendent adopted the hearing officer’s recommendation and imposed a 20-day suspension to be held in abeyance under the conditions recommended by the hearing officer.  Petitioner appealed to respondent, which upheld the superintendent’s decision.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 3, 2009.

Petitioner seeks to vacate and expunge the suspension and conditions from her daughter’s school records.  Petitioner contends that S.H. did not violate school policy by having medication on her person while on school property.  Petitioner also asserts that the hearing officer improperly asked the principal for a recommendation of penalty.  Petitioner contends further that the superintendent expressed bias in a post-hearing telephone conversation.  Finally, petitioner maintains that respondent improperly imposed counseling as a penalty.

Respondent contends that the decision to suspend was based on competent and substantial evidence because S.H. admitted that she gave her prescription medication to another student to “hold” for her, that this transfer caused disruption of the educational process, and that S.H. was aware that this violated school district policy.  Respondent asserts that petitioner did not object to S.H.’s admission at the hearing.  Respondent also objects to petitioner’s new argument that the transfer did not take place on school property because it was not raised at the hearing or in her appeals to the superintendent and the board of education.  Respondent argues that it nevertheless has authority to discipline a student for conduct that occurs off school property.  Finally, respondent defends the penalty as authorized under Education Law §3214(3)(e).

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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioner does not dispute that her daughter admitted to the charged conduct, namely giving her prescription medication to another student to “hold,” knowing it was prohibited by school district policy and caused a disruption of the educational process.  Rather, petitioner argues that the transfer did not occur in school.  However, the location of the transfer was not specified in the charge, or raised by petitioner at the hearing or the appeals to the superintendent or the board of education.  Because the issue of where the transfer took place was not adjudicated below, it may not be raised in an appeal before the Commissioner under Education Law §310 (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451; Appeal of D.V., 44 id. 263, Decision No. 15,168; Appeal of A.R. and S.R., 40 id. 262, Decision No. 14,477).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).  Based on the hearing testimony of the principal and S.H.’s admission, I find no basis to overturn respondent’s determination of guilt or the imposition of a 20-day suspension that petitioner has not challenged as excessive.

Petitioner’s claim that respondent improperly conditioned her daughter’s attendance in school upon her participation in drug counseling has no merit.  Education Law §3214(e) provides in pertinent part:

Procedure after suspension ... where a pupil has been suspended for cause, the suspension may be revoked by the board of education whenever it appears to be for the best interest of the school and the pupil to do so.  The board of education may also condition a student’s early return to school and suspension revocation on the pupil’s voluntary participation in counseling ....” (emphasis added)

The emphasized language was added by Chapter 170 of the Laws of 2006 to expressly permit a board of education to condition a student’s early return to school and suspension revocation on his or her voluntary participation in counseling.  In this case, respondent imposed a 20-day suspension which it offered to revoke or shorten, provided the student participates in counseling.  I therefore find that respondent acted within its authority under the 2006 amendment to §3214(e).

Based on my review of the record, I cannot conclude that respondent’s determination was arbitrary or unreasonable.

I have considered petitioner’s remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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