Appeal of M.B. and M.B., on behalf of their son M.B., from action of the Board of Education of the Bedford Central School District regarding student discipline.

Decision No. 17,304

(January 4, 2018)

Keane & Beane, P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Bedford Central School District to impose discipline on their son, M.B. (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student was a member of respondent’s high school football team.  On October 28, 2016, the student was involved in an incident whereby several members of the football team vandalized a team room and damaged equipment located therein.

On October 31, 2016, two coaches interviewed the student and other members of the football team regarding the October 28, 2016 incident.  In this meeting, the student admitted to involvement in the October 28, 2016 incident.

On November 1, 2016, two assistant principals met with the student in one of the assistant principal’s offices to discuss the student’s role in the October 28, 2016 incident.  In this meeting, the student verbally admitted his guilt to damaging ceiling tiles by throwing his helmet into the ceiling.  In accordance with a request by the assistant principals, the student generated a written statement concerning his role in the incident.  In this written statement, the student admitted that he “took a red blocking bag, brought it into the room and put it in an empty hole in the ceiling.”  While the student was questioned, petitioners assert that a school resource officer (“SRO”) was present.  Respondent states that the SRO “may” have been present because he houses equipment in the same office suite where the meeting took place, but that, if he was present, it was merely a coincidence.

On November 4, 2016, the high school principal spoke to the student’s mother by telephone and informed her of the results of the district’s investigation regarding the October 28, 2016 incident.  The principal further informed the student’s mother that he had imposed a one-day in-school suspension for the student’s role in this incident.

The record contains a letter dated November 4, 2016 from the principal imposing a one-day in-school suspension.  Although this letter references a suspension date of November 7, 2016, the record reflects that the principal allowed the student to choose which day he would serve the suspension, and that the student chose, and served his suspension on, November 10, 2016.

Petitioners appealed the principal’s determination to respondent.  Respondent upheld the principal’s one-day in-school suspension in a letter dated November 18, 2016.  This appeal ensued.

Petitioners raise various objections to the circumstances under which the student was questioned about the October 28, 2016 incident.  With respect to the interview with the two coaches, petitioners allege that the coaches were “bias[ed] because they were at fault for not supervising the students/football players.”  With respect to the interview with the assistant principals, petitioners allege that respondent arranged for the SRO to be present during the interview so that he would “indirectly intimidate” the student.  Petitioners further state that they received the principal’s letter dated November 4, 2016 in the mail on November 10, 2016, the day the student served his one-day in-school suspension, and were not afforded a sufficient opportunity to discuss the suspension with the principal.  Petitioners request that the suspension be expunged from the student’s record; that respondent be ordered to “review the School Resource Officer Policy”; and that the State Education Department conduct an investigation into the October 28, 2016 incident.

Respondent contends that the student admitted that he engaged in the charged conduct, that the principal gave petitioners notice and an opportunity to discuss the incident, and that the interviews with the student were conducted appropriately.

In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  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 D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Here, the principal attests in an affidavit that he spoke with petitioners on November 4, 2016 to convey the results of his investigation and communicate his imposition of a one-day, in-school suspension.  The principal asserts in that affidavit:

Generally, it is my practice that when I am imposing a disciplinary penalty, such as an in-school or out-of-school suspension, I verbally offer parents the opportunity to discuss the matter. 

Petitioners admit in the petition that they spoke with the principal on November 4, stating that the principal informed them that their son was receiving an in-school suspension for the locker room incident.  The petition does not otherwise describe that conversation and petitioners have not submitted a reply or otherwise rebutted the allegations by the principal that he personally spoke with the student’s mother about the proposed in-school suspension on a minimum of three occasions before he imposed the penalty and that, on November 4 he informed petitioner of the results of his investigation and the penalty he was imposing.

As petitioners point out, however, the provision of respondent’s Code of Conduct regarding procedures for in-school suspensions, Section 5300.35(B)(4), provides that the student and the student’s parent:

will be provided with a reasonable opportunity for an informal meeting with the district official imposing the in-school suspension to discuss the conduct and the penalty involved.

Petitioners assert that such a meeting did not occur.  Respondent denies this allegation and asserts that petitioners were informed of their right to an informal conference at which they could question complaining witnesses in a written notice dated November 4, 2016.  Both petitioners and respondent appear to be under the mistaken belief that the provisions of Education Law §3214(3)(a) relating to the right to an informal conference with the principal at which the parent may question complaining witnesses apply to in-school suspensions.  However, as noted previously, it is well-settled that Education Law §3214 does not apply to in-school suspensions (see e.g. Appeal of G.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).

Regardless, while respondent did send a written notice in a letter dated November 4, 2016 by regular mail indicating that petitioners had the right to “an immediate informal conference” with the principal at which they could question complaining witnesses, petitioners assert that the letter was postmarked November 7 and was not received by petitioners until November 10, the day the student served the in-school suspension.  Such written notice, received after the student began serving the in-school suspension does not, in and of itself, establish that petitioners were afforded a reasonable opportunity to meet with the principal.  I further note that there is no evidence in this record that a face-to-face meeting with the principal occurred prior to the in-school suspension.

However, on this record, petitioners have not met their burden of proving that the principal did not offer them an opportunity to discuss the student’s conduct prior to imposing the in-school suspension (see Appeal of Denis, 40 Ed Dept Rep 306, Decision No. 14,487).  The principal who imposed the in-school suspension discussed the student’s conduct and the penalty in telephone conversations with one of the petitioners, and petitioners have not proven that they were not afforded an opportunity to discuss their son’s conduct and pose questions to the principal during this conversation.  Thus, petitioners have not established that they were denied a fair and reasonable opportunity to discuss the proposed in-school suspension, nor have they established that the principal did not verbally offer to meet with them to discuss the matter on November 4.  The fact that the written notice dated November 4 did not itself satisfy the requirement of respondent’s Code of Conduct, which affords parents a reasonable opportunity for a meeting with the principal, does not establish that petitioners were not afforded a fair opportunity to discuss the conduct and the proposed penalty prior to the in-school suspension.  Even if I concluded that petitioners had proven that respondent violated its Code of Conduct by failing to afford them with a reasonable opportunity for a meeting with the principal, given that petitioners were afforded the opportunity to discuss the in-school suspension in telephone conversations, any such violation would be de minimis and would not warrant expungement of the in-school suspension.

Although the petition is not entirely clear, to the extent petitioners argue that respondent improperly failed to notify them before questioning the student, such claim is without merit.  Petitioners do not allege a violation of any specific constitutional provision, nor do they cite to any case law holding that parental notification is required.  Neither the provisions of the Education Law nor constitutional due process considerations require that a parent be present when a student is questioned by school personnel about possible infractions of school rules (Appeal of M.W. and K.W., 55 Ed Dept Rep, Decision No. 16,903; Appeal of D.H., 47 id. 77, Decision No. 15,631).  Moreover, petitioners have not alleged or proven that respondent has adopted such a policy.  Indeed, the record indicates that section 5300.55 of respondent’s Code of Conduct states as follows:

[A]ny school official authorized to impose a disciplinary penalty on a student may question a student about an alleged violation of law or the district code of conduct.  Students are not entitled to any sort of “Miranda”-type warning before being questioned by school officials, nor are school officials required to contact a student’s parent before questioning the student (emphasis supplied).

Therefore, on this record, petitioners have failed to carry their burden of proof with respect to this claim.

With respect to petitioners’ contention that the in-school suspension should be expunged because the student was intimidated by school staff and by the presence of the SRO and the district security officer when he admitted the misconduct, I need not address these contentions as petitioners admit on appeal that the student engaged in the charged conduct.  In their petition, petitioners assert that the student “broke two ceiling tiles and put a plastic/foam dummy bag on the ceiling” and further state that “in no way are we condoning the action of [the student] or any of the other students involved.”  Therefore, because petitioners have admitted that their son is guilty of the misconduct charged, any discussion of the circumstances concerning the student’s admission of guilt would be advisory and it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853). 

Petitioners have also failed to establish that the penalty of a one-day in-school suspension was disproportionate to the offense.  Petitioners’ son is guilty of damaging school district property, which he himself admits is inappropriate.  To the extent petitioners argue that other team members received lesser penalties, the Commissioner has ruled with regard to out-of-school suspensions that the fact that other students involved in the incident may have received different or lesser penalties, or no disciplinary measures at all, does not, in and of itself, provide a basis for nullifying the discipline imposed on the student who is being suspended (Application of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,111; Appeal of R.Y., 49 id. 336, Decision No. 16,046).

Finally, petitioners’ request for an investigation, and for disclosure of various records pertaining to the incident that led to their son’s in-school suspension, must be dismissed for failure to state a claim upon which relief may be granted.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  Moreover, petitioners cite no statutory authority in support of their request for an order directing that all school district records relating to the incident, including verbal/written statements made by other football players, notes by district staff and photos/videos of the damaged locker room be made available to petitioners for review.  In the context of a student disciplinary hearing under Education Law §3214(3)(c), the Commissioner has previously ruled that there is no statutory authority for discovery related to a disciplinary incident (Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723; see also Appeal of A.B., 57 id., Decision No. 17,172).  Similarly, there is no statutory basis for discovery relating to a disciplinary incident for which an in-school suspension was imposed.  Petitioners’ recourse, if they wish to seek review of the school district’s records, is to request disclosure of the records under the Freedom of Information Law (“FOIL”), Article 6 of the Public Officers Law, though the student disciplinary records are confidential and may only be disclosed to the extent permitted under the federal Family Educational Rights and Privacy Act, 20 USC §1232g.

THE APPEAL IS DISMISSED.

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