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Decision No. 14,418

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

Decision No. 14,418

(August 4, 2000)

Joyce B. Berkowitz, Esq., attorney for petitioner

David W. Lippitt, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the suspension of her son and requests that the Board of Education of the Keshequa Central School District ("respondent") be directed to expunge the suspension from her son’s record. The appeal must be sustained.

Petitioner’s son is classified as a student with a learning disability by respondent’s Committee on Special Education (CSE) and is mainstreamed for all his classes. On the afternoon of December 1, 1999, petitioner’s son, then a ten year old fifth grade student at Dalton Elementary School, returned with his class on a school bus from a field trip to Rochester, New York. As the students were getting off the bus, two students told the fifth grade teacher that petitioner’s son stated on the bus that he was going to send a bomb to the school and blow it up. The teacher talked to the three boys together and petitioner’s son denied making the statement and said that he had been talking about the Columbine school incident. The teacher sent the three boys to the principal’s office and their parents were contacted to inform them that the boys would be kept after school, until the late bus run, to allow the interim principal to investigate the matter.

One of the boys told the interim principal that petitioner’s son said he "would make a bomb" and "send it [to school] in the summer so whoever was in the building would blow up" but that he "couldn’t make a bomb without gold." The other boy reported hearing petitioner’s son talking about bombs and saying words to the effect that he "couldn’t make it [a bomb] because he wanted to make it out of gold instead of anything else." Petitioner’s son told the interim principal that his comments were made in the context of discussing recent shootings in Colorado and that one of the other boys got what he said "all mixed up." The interim principal asserts that petitioner’s son admitted telling one of the boys, "how the kids at the high school could make a bomb, why make a threat when they can take a bomb to school and not tell anybody" and "how can I make a bomb out of gold if gold costs so much."

After interviewing the three students together, the interim principal, on the advice of the superintendent, separated the boys and took written statements from each of them. The interim principal, in consultation with the superintendent, decided that the other two boys’ statements were consisted and reliable and warranted imposing some form of disciplinary penalty on petitioner’s son. The interim principal then telephoned the Town of Nunda Police Department to request that they investigate the matter. The interim principal telephoned petitioner on December 1, 1999 and informed her that her son would be suspended for five days for making a bomb threat. At 7:00 p.m. on December 1, 1999, police interviewed petitioner, her husband and son. After interviewing the other boys on December 2, 1999, the police investigation was closed with a finding of no criminal action.

Upon petitioner’s request, a conference was scheduled for 7:45 a.m. the morning of December 2, 1999. The conference was attended by petitioner and her husband, the interim principal, the school caseworker and the fifth grade teacher who reported the matter. The school caseworker was present because the interim principal believed petitioner’s son would be in attendance and may need assistance. Petitioner did not bring her son to the conference because she believed that the suspension took effect immediately and was not told that he should attend. The teacher recounted what the boys had reported and the interim principal recalls offering to go over the boys’ transcribed statements but that petitioner and her husband declined, saying that they had met with a town police officer and reviewed those statements with him. When petitioner and her husband complained that their due process rights had been violated, the interim principal indicated that he intended to meet with their son to afford him his due process rights but that his absence made that impossible.

After the conference, the interim principal sent a letter by certified mail to petitioner and her husband, to formally notify them of the suspension from Thursday, December 2, 1999 through Wednesday, December 8, 1999 for "making a bomb threat." At approximately 12:30 p.m., petitioner’s husband returned to the interim principal’s office. The interim principal told him that a letter suspending his son had been sent to his home and they discussed the reasons for the suspension and arrangements for tutoring. Petitioner received the letter by certified mail on December 3, 1999. Tutoring was not provided until Tuesday, December 7, 1999 when petitioner’s son received five hours at the local library. Petitioner commenced this appeal on December 30, 1999 to obtain an order expunging the suspension from her son’s record.

Petitioner contends that she was not provided adequate due process, because the certified letter notifying her of her son’s suspension arrived two days after the suspension had begun and did not inform her of her right to an informal conference with the principal and complaining witnesses. Petitioner also contends that the letter indicated a predisposition to suspend her son irrespective of any information shared at the December 2 meeting. Petitioner contends that the facts do not support the charge and that the other boys are not credible witnesses. Petitioner also contends that the interim principal improperly delayed providing tutoring by instructing the tutor to meet her son at a neutral location instead of his home. Petitioner also contends that the five-day suspension is excessive because her son has no record of previous disciplinary infractions.

Respondent admits that petitioner’s son has no previous disciplinary record but denies that the suspension is excessive and that the interim principal violated procedures. Respondent argues that the two boys who reported the incident are credible witnesses. Respondent asserts as an affirmative defense that the petition must be dismissed because petitioner failed to appeal the suspension to the board of education and thus failed to exhaust administrative remedies.

I will first address respondent’s affirmative defense regarding the board’s role in this five-day suspension. Unless a board of education has adopted local policy to the contrary, suspensions of five days or less do not require an appeal to the board before initiating an appeal under Education Law "310 (Appeal of Tooley, 39 Ed Dept Rep 334, Decision No. 14,253; Appeal of Amara S., 39 id. 90, Decision No. 14,182). Because the record reflects no policy adopted by respondent requiring such an appeal, I will not dismiss the petition for failure to exhaust administrative remedies.

With regard to the adequacy of the notice provided to petitioner, Education Law "3214(3)(b) requires that, for student suspensions of five days or less:

In the case of such a suspension by the principal, the pupil and the person in parental relation to the pupil shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of complaining witnesses.

Notice of the right to request an informal conference is required by "100.2(l)(e) of the Commissioner’s regulations which provide that:

school district officials shall immediately notify the parents or persons in parental relation in writing that the student has been suspended from school. Written notice 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 suspension.

Respondent did not use the methods of delivery required by "100.2(e)(4), i.e., personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension. The method used by respondents, certified mail, is no more expeditious than regular mail and, therefore, does not satisfy the regulation (see, Appeal of J.G., __ Ed Dept Rep __, Decision No. 14,270; Appeal of Milano, 37 id. 472, Decision No. 13,908). Respondent admits that no written notice was mailed until after the informal conference and that petitioner received the notification letter on December 3, 1999, two days after the interim principal’s telephone notice. When the interim principal held the informal conference on December 2, 1999 or met with petitioner’s husband later that day, he could have satisfied the regulatory requirement by personally delivering a copy of the written notice, but failed to do so (Appeal of J.G., supra). Although respondent informed petitioner of the suspension by telephone on December 1, 1999, the regulation requires telephone notification in addition to written notice, where possible, and not as a substitute. Moreover, there is no evidence that petitioner was ever informed, by telephone, at the informal conference on December 1 or in writing, of her right to ask questions of complaining witnesses. While the interim principal apparently offered to go over the complaining student’s written statements with petitioner at the informal conference, there is no indication that these students or any individual with personal knowledge of the incident was made available for questioning by petitioner. Accordingly, the five-day suspension must be expunged from petitioner’s son’s records (Appeal of J.G., supra; Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Milano, supra).

With regard to the timeliness of alternative instruction, Education Law "3214(3)(e) provides:

Procedure after suspension. Where a pupil has been suspended as insubordinate or disorderly and said pupil is of compulsory attendance age, immediate steps shall be taken for his attendance upon instruction elsewhere…

Respondent admits that petitioner’s son did not receive alternative instruction until December 7, 1999, the fourth day of the five-day suspension. In Matter of Kalik, 21 Ed Dept Rep 567, Decision No. 10,793, the Commissioner noted that:

Education Law "3214(3)(e) provides that where a student has been suspended as insubordinate or disorderly and the student is of compulsory attendance age, immediate steps shall be taken for attendance elsewhere. The term "immediate" does not mean instantaneously, but it does mean that a school district should act reasonably promptly, with due regard for the nature and circumstances of the particular case (citing Turner v. Kowalski, 49 AD2d 943 (2d Dept 1975)).

In this case, I find that respondent did not act reasonably promptly in providing petitioner’s son with alternative instruction in accordance with Education Law "3214(3)(e).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent’s suspension of petitioner’s son from December 2, 1999 through December 8, 1999 be annulled and expunged from his record.

END OF FILE