Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Wheatland-Chili Central School District regarding student discipline.

Decision No. 17,519

(October 15, 2018)

Law Office of James Cole, PLLC, attorneys for petitioner, James Cole, Esq., of counsel

Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Wheatland-Chili Central School District (“respondent”) to impose discipline upon her son (the “student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student attended respondent’s junior/senior high school.  In a letter dated March 16, 2018, the secondary principal (“principal”) of the junior/senior high school informed petitioner that the student would be suspended for five school days between March 19, 2018 through and including March 23, 2018 for possession of marijuana and for obtaining marijuana from another student.

In a letter dated March 20, 2018, respondent’s superintendent informed petitioner that she would convene a long-term suspension hearing on March 23, 2018 based upon the student’s conduct described in the March 16, 2018 letter.

In a letter dated March 22, 2018, the superintendent confirmed that the long-term suspension hearing was being postponed at petitioner’s request.  According to the record, the long-term suspension hearing thereafter convened on April 9, 2018.

At the outset of the hearing, the student confirmed the accuracy of the charges against him; namely, that:

On March 16, 2018, [the student] admitted to obtaining marijuana from another student during school that day.  He and school security then retrieved the bag and subsequently [the student] produced a small bag of marijuana.

Immediately after the conclusion of the guilt phase of the long-term suspension hearing, a manifestation determination review (“MDR”) team convened and determined that the student’s conduct was not a manifestation of his disability.  The superintendent then convened the penalty phase of the long-term suspension hearing and determined that the student would be suspended through April 24, 2018 and return to school on April 25, 2018 (i.e., 15 days from the date of the hearing).

Petitioner thereafter appealed the superintendent’s determination to respondent in an email dated April 9, 2018.  Respondent denied petitioner’s appeal on April 23, 2018.  This appeal ensued.

Petitioner contends that respondent was precluded from imposing an out-of-school suspension of more than five days based upon the language of its code of conduct.  Specifically, petitioner asserts that respondent’s code of conduct separates violations into one of four levels, that the student’s conduct on March 16, 2018 constituted a level 3 offense, and that the code of conduct only allows for a maximum of five days of out-of-school suspension for level 3 violations.  Consequently, according to petitioner, the principal “was not authorized to recommend a [s]uperintendent’s hearing.”  Petitioner requests that the student’s long-term suspension be reversed and expunged from the student’s record.

Respondent contends that the superintendent was authorized to impose a long-term suspension based upon the language of Education Law §3214 and the “overall language” of its code of conduct.  Respondent further asserts that the criterion by which the length of a long-term suspension may be evaluated is whether it is so excessive that it warrants substitution of the Commissioner of Education’s judgment for that of the board of education, and petitioner has not met her burden of proving that the instant suspension met this standard.

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).    

Initially, I note that petitioner does not appeal respondent’s determination as to the student’s guilt concerning the charged conduct or contend that the short-term suspension should be expunged.  Petitioner’s sole challenge on appeal concerns respondent’s ability to impose a long-term suspension here given the language in its code of conduct.

At the beginning of its code of conduct, respondent “recognizes the need to clearly define [its] expectations for acceptable conduct on school property [and] to identify the possible consequences of unacceptable conduct ....”  The code of conduct proceeds to delineate the rights and responsibilities of students and administrators. 

Section VI of the code of conduct is entitled “Levels of Behavior Concerns, Violations and Responses – Infractions.”  This section divides student conduct into four levels of severity, each accompanied by an explanation of consequences which “[m]ay be appropriate” for such violations.  The levels of violations and their attendant consequences are identified as follows:

Level 1: Classroom support and student support team

Level 2:  Intensive support staff and appropriate administration

Level 3: Short-term suspension

Level 4:  Request for long-term or permanent suspension.

Petitioner asserts that the conduct to which the student admitted constituted “Level 3” conduct.

Section VIII of respondent’s code of conduct is entitled “Disciplinary Penalties – Levels of Possible Responses (Dispositions) and states that, “[a]s a general rule, discipline will be progressive,” but that all discipline is based upon a consideration of six factors, including the student’s age, the nature of the offense, and his or her prior disciplinary record.  This section identifies the four levels of offenses and states that “[s]tudents who are found to have violated the district’s code of conduct may be subject to the following penalties, either alone or in combination.”

Upon review of respondent’s code of conduct in its entirety, I conclude that it does not prescribe “maximum” penalties for particular conduct as petitioner suggests.  In section VI of the code of conduct, each level of violation identifies consequences which “[m]ay be appropriate” based upon a student’s conduct.  This language is permissive, not mandatory.  Moreover, above the table assigning levels to various offenses, section VI of the code of conduct contains the following statement:

NOTE: Lowest level infractions are noted below. In situations where behavior continues and may become persistent, infractions progress to higher levels.

The reference to lowest level infractions is inconsistent with petitioner’s contention that section VI prescribes maximum penalties for the various infractions; at most, it could be interpreted to mean that the identified penalties are minimum penalties.[1]  The language also indicates that progressive discipline may be imposed, which would not be possible if the identified penalties served as ceilings on penalties.[2] Section VIII makes this more explicit, stating that student discipline is based upon multiple factors and is not, as petitioner argues, based solely on the identified “level” of the offense.  This section again states that “[a]s a general rule, discipline will be progressive.” 

To reach a contrary conclusion would invite absurd results, as many extremely serious behaviors – such as engaging in cyberbullying or conduct including threats, intimidation or abuse that causes a student to fear for his or her physical well-being; “[c]omitting an act of violence” against a fellow student, teacher, or administrator; selling controlled substances or other “illegal substances” or prescription or over-the-counter drugs on school property; and using “email or websites to engage in or encourage illegal behavior or threaten school safety” – are all categorized as level 3 offenses.  Therefore, I find that respondent was not precluded from convening a long-term suspension hearing based upon the student’s conduct and, after a finding of guilt, imposing discipline in connection therewith (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311).

Additionally, I do not find a 15-day suspension to be inappropriate under the facts of the case.  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 with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909). 

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, the student admitted to purchasing and possessing marijuana on school grounds.  I have upheld substantially longer penalties for students who admitted to, or were found guilty by competent and substantial evidence of, such conduct (see Appeal of A.W., 57 Ed Dept Rep, Decision No. 17,254 [approximately six-month suspension for possession and sale of marijuana upheld]; Appeal of K.K., 51 id., Decision No. 16,358 [approximately five-month suspension for possession of marijuana upheld]; Appeal of J.S., 50 id., Decision No. 16,091 [one-year suspension, with possibility of return to school after nine months, for possession and sale of marijuana upheld]).  Based on the record before me, I find that petitioner has failed to meet her burden of proving that the imposition of a 15-day suspension is so excessive as to warrant substitution of my judgment for that of respondent.

Nevertheless, I agree with petitioner that the language of respondent’s code of conduct may cause confusion to parents and students.  In particular, section VI of the code of conduct identifies a wide variety of offenses (approximately seven pages’ worth) in a tabular display and indicates whether each constitutes a level 1, 2, 3 or 4 offense.  Respondent likely did so, as the introduction to the code of conduct suggests, to “identify the possible consequences of unacceptable conduct ....”  Nevertheless, by describing particular offenses in detail and assigning a level designation to each, respondent has suggested the possibility that prohibited conduct is automatically subject to the discipline associated with its assigned level.  To avoid confusion and unnecessary appeals, I encourage respondent to clarify the scope and intent of section VI of its code of conduct entitled “Levels of Behavior Concerns, Violations and Responses – Infractions.”  Specifically, I encourage respondent to add qualifying language that more clearly indicates that the level designations do not limit the maximum penalty that can be imposed pursuant to section VIII of the code of conduct. 

Given this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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