Appeal of D.K., on behalf of her daughter M.K., from action of the Board of Education of the Homer Central School District regarding student discipline.

Decision No. 17,539

(November 26, 2018)

Law Offices of Frederick R. Xlander, P.C., attorneys for petitioner, William J. Casey, Esq., of counsel

Harris Beach PLLC, attorneys for respondent, Edward A. Trevvett, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Homer Central School District (“respondent”) to impose discipline upon her daughter (“the student”).  The appeal must be sustained in part.

On January 17, 2018, respondent’s high school principal was copied on an email which indicated that, according to an “individual,” the student had been observed using a vaping device backstage during rehearsal for a school musical. 

On the morning of January 18, 2018, the principal and vice principal met with the individual who alleged that the student had used a vaping device.  The individual indicated that he or she saw the student place a “pen-style vape” on her lips and then exhale “‘smoke’ or some sort of exhaust.”  The individual indicated that this occurred three or four times.

The principal and vice principal met with the student later that morning.  The student denied using a vaping device during the musical rehearsal, but indicated that she “had used a vape in her car in the Homer High School Parking Lot before rehearsal” on January 17, 2018 “and used a vape that her sister[,] who was home from college[,] had given her.”  The principal informed the student that this violated both the student and extracurricular codes of conduct. 

The principal then contacted petitioner by telephone.  He indicated that he “was considering a suspension” and asked if petitioner could meet with him.  Petitioner indicated that “she would be right over by 11 am.”

The principal met with petitioner at approximately 11:00 a.m. to discuss the incident at the high school.  At this meeting, the principal informed petitioner that he was imposing a five-day out-of-school suspension as well as a “co-curricular” suspension of 30 days based upon the student’s admission that she “used a vape.”

On the following day, January 19, 2018, the principal mailed written notice of the student’s suspension to petitioner.  This notice indicated that the student had been suspended for five days and received a “30 day Co-Curricular Suspension” for the “[u]se, [p]ossession, or [s]ale of [d]rugs.”[1]  The written notice indicated the following “details of the investigation”:

It was reported that [the student] had used a vaping device while at musical rehearsal in the auditorium on 1/16 [and] 1/17.  [The student] indicate[d] that she did not do this, but that she did use a vaping device in a car on school grounds prior to musical rehearsal after school on 1/17/18 ....

This appeal ensued.  Petitioner’s request for interim relief was granted on February 12, 2018.

Petitioner argues that possession of a vaping device is not prohibited by respondent’s code of conduct.  Petitioner further contends that respondent failed to provide her with written notice of the student’s suspension prior to imposition of the suspension.  Petitioner also submits that the suspension was overly harsh because the student had never violated the code of conduct in her entire time in respondent’s district.  Finally, petitioner argues that respondent violated the federal Family Educational Rights and Privacy Act (“FERPA”) when a district teacher informed a class that the student had been suspended.  Petitioner seeks expungement of the short-term and extracurricular suspensions from the student’s record.

Respondent contends that it appropriately disciplined the student for her violation of its code of conduct.  Respondent further argues that the penalty was appropriate, and that the Commissioner has no jurisdiction over petitioner’s FERPA claims.

I must first address several preliminary issues.  Petitioner served a reply in this matter after her request for interim relief was granted, but prior to service of respondent’s answer.  It appears that petitioner sought to respond to allegations contained in respondent’s opposition to petitioner’s stay request.  However, 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, because it was served prior to service of respondent’s answer, I have not considered petitioner’s reply in my decision.

To the extent petitioner raises claims under FERPA, the Commissioner lacks jurisdiction to consider FERPA claims.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 USC §1232g; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502).

The appeal must be dismissed, in part, as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  The student has served both suspensions at issue in this appeal.  Additionally, in response to a directive from my Office of Counsel, respondent indicated that the student graduated from respondent’s district on June 23, 2018.  Therefore, the appeal is moot insofar as the student has served both suspensions.  Nevertheless, petitioner seeks expungement of the suspension from the student’s record, and respondent indicates that it maintains records of both the short-term and extracurricular suspensions at issue in this case.  Therefore, to the extent petitioner seeks expungement, such claim remains live (Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of D.O., 53 id., Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

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 (see e.g. Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,170; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

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 J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

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).

The student’s short-term suspension must be expunged from her record based on respondent’s failure to provide timely written notice.  Respondent asserts that it sent written notice of the student’s suspension by mail on January 19, 2018.  First, as noted above, the provision of written notice by regular mail does not satisfy the requirement of 8 NYCRR §100.2(l)(4) (see Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,170).  Furthermore, the record indicates that the student’s suspension began on the previous day, January 18, 2018.  The written notice does not contain a finding that the student’s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption of the academic process and there is no evidence in this record to support such a finding. Therefore, respondent violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l) by failing to provide written notice and an opportunity for an informal conference prior to commencement of the suspension.

Respondent’s argument that the principal met with petitioner at 11:00 a.m. on January 18 to discuss the suspension, and that this meeting allegedly constituted an informal conference, is not persuasive because the record indicates that the suspension commenced on January 18 and respondent admits that written notice was not provided until the next day by regular mail.  Thus, even if I accepted respondent’s argument that petitioner and the student were afforded an opportunity for an informal conference at the meeting on January 18, the student’s suspension commenced prior to such meeting in violation of Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l).    Providing written notice to the parents of their statutory right to question complaining witnesses in the presence of the principal after commencement of the suspension and after the informal conference defeats the purpose of the written notice requirement, which is to afford the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

In response, respondent argues that its failure in this regard should be excused because “the reality is that the [p]etitioner and [the student] discussed the allegations ... via telephone at 10:30 a.m. on January 18” and, later that day, when petitioner met with the principal.  Respondent, however, ignores prior decisions of the Commissioner which have consistently held that holding an informal conference with the principal does not excuse the requirement for prior written notification to students and their parents explaining their rights to the conference and the opportunity to question complaining witnesses prior to the suspension (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of B.B., 49 id. 253, Decision No. 16,017; Appeal of R.J. and D.J., 44 id. 191, Decision No. 15,145; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059).  Further, as noted above, oral communication with a parent regarding a suspension is not a substitute for the required written notification (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

Prior decisions of the Commissioner cited by respondent in its memorandum of law are distinguishable.  First, Appeal of M.W and K.W. (55 Ed Dept Rep, Decision No. 16,903) is not entitled to any precedential value with regard to the provision of prior written notice as the dispute in that case was found to be moot.  However, even assuming, arguendo, that the appeal had not been dismissed as moot, the case only involved in-school and extracurricular suspensions.  In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; Appeal of D.K., 48 id. 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700).  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 M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; Appeal of D.K., 48 id. 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700).

Appeal of S.Z. and K.Z. (52 Ed Dept Rep, Decision No. 16,384) is also distinguishable.  In Appeal of S.Z. and K.Z., the Commissioner expunged a short-term suspension where the principal failed to provide written notice to the parents prior to imposition of an out-of-school suspension.  It is true, as respondent indicates, that the Commissioner also found fault with the principal offering an informal conference to the parent, at the earliest, on the second day of the student’s suspension.  Nevertheless, the Commissioner expunged the five-day suspension in that appeal “because petitioners were not afforded timely written notice and an opportunity for an informal conference with the principal prior to the suspension” (emphasis added).  In other words, the district’s failure to provide timely written notice constituted an independent basis for ordering expungement of the student’s record, in and of itself, and independent of any deficiencies with the informal conference. 

Therefore, based upon respondent’s failure to provide prior written notice as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l), the student’s five-day suspension must be expunged from her record (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).

The extracurricular suspension, however, must be upheld.  Respondent’s Extra/Co-Curricular Activity Code (“extracurricular activity code”) is included in respondent’s code of conduct as Article XIV.  Section B of the extracurricular activity code (Article XIV) provides that students must “exemplify good citizenship both in school and in the community,” and that “[a] student who does not will be removed from participation for a period of time, depending upon the severity of the offense.”  Here, respondent charged the student with the “[u]se, [p]ossession, or [s]ale of [d]rugs.”  While the provisions of respondent’s extracurricular activity code (Article XIV, section C) relating to substance abuse are not a model of clarity with respect to drug/smoking paraphernalia, it does, among other things, refer to violations of rules concerning the use or possession of tobacco in any form and illegal drugs.  The definition of “Drug Possession, Use or Sale” in Article III, section A, paragraph 8 of respondent’s code of conduct expressly includes possession or use of “drug/smoking paraphernalia” within that definition.   “Paraphernalia” is defined by Merriam-Webster’s dictionary to refer to “accessory items” or “appurtenances.”  To this end, respondent’s code of conduct prohibits possession of “matches” and “lighters,” objects which in and of themselves are not drug-related but may be used to facilitate drug use.  In fact, Article III, section B, paragraph 6 of respondent’s code of conduct relating to drug paraphernalia explicitly provides that the prohibition against use, possession, sale or distribution of drug paraphernalia includes matches and lighters.  Thus, I find that a vaping device – which may be loaded with cartridges containing marijuana or liquid nicotine – constitutes drug or smoking paraphernalia within the meaning of respondent’s code of conduct.

Petitioner argues that a vaping device cannot be considered paraphernalia because “[a] vaping device does not include[,] nor is its intended purpose to include[,] illegal drugs ....”  This argument is foreclosed by the language of respondent’s code of conduct, which prohibits devices such as lighters and matches, which are commonly used for non-drug purposes.  Petitioner further argues that there is “no evidence ... that the vaping device used by [the student] contained illegal drugs or that she intended to use the device as drug paraphernalia.”  While I agree with petitioner’s factual contention that there is no proof in this record that the student used the vaping device to dispense marijuana or liquid nicotine, respondent’s code of conduct clearly prohibits possession of objects which may be used to facilitate drug use, and I find that a vaping device constitutes such an object.  Any ambiguity is resolved by the fact that the code identifies matches and lighters as illustrative examples of drug paraphernalia.[2]

Moreover, section 1399-o(5) of the Public Health Law explicitly prohibits the use of an electronic cigarette on school grounds.  Thus, it was not unreasonable for respondent to prohibit possession of devices themselves, even if they are capable of a benign use.  In light of this statutory prohibition, I find that respondent could have reasonably determined that the student, by using an electronic cigarette or vaping device on school property, failed to exemplify good citizenship which, in turn, warranted a suspension from extracurricular activities under the provisions of respondent’s code of conduct.  Thus, whether or not the provisions of respondent’s extracurricular activity code were ambiguous with regard to suspensions for possession or use of drug paraphernalia, respondent had a rational basis for imposing a suspension from extracurricular activities for the student’s conduct. 

Finally, petitioner argues that the penalty imposed by respondent was excessive.  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).  As noted above, respondent’s extracurricular activity code provides that students must “exemplify good citizenship both in school and in the community,” and that “[a] student who does not will be removed from participation for a period of time, depending upon the severity of the offense.”   The Commissioner has held that a board of education has broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it can be shown that the board has abused its discretion, the policy will be upheld (Appeal of T.T. and K.T., 52 Ed Dept Rep, Decision No. 16,386; Appeal of M.K., 48 id. 462, Decision No. 15,916).

Here, I cannot find that a 30-day suspension from participation in extracurricular activities for possession and use of a vaping device or electronic cigarette, which constitutes drug paraphernalia, to be excessive.  As indicated in a 2017 study published in the Journal of the American Heart Association and submitted by respondent on appeal, while the long-term effects of vaping “have not yet been documented ... short-term negative effects have been suggested by several studies.”  Given the ubiquity of these devices, their potential for harm and the fact that there is a statutory prohibition in section 1399-o(5) of the Public Health Law against the use of electronic cigarettes on school grounds, it was not unreasonable for respondent to impose a 30-day extracurricular suspension under the facts of this case.  Although the student had no record of prior discipline, even a student who has a previously unblemished record is not necessarily entitled to receive a lesser penalty than would otherwise be imposed for a particular offense (Matter of Lutes, 25 id. 396, Decision No. 11,624).

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent annul and expunge from the student’s record all references to the student’s short-term suspension between January 18, 2018 through January 24, 2018.[3]

END OF FILE