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Decision No. 15,681

Appeal of J.Z., on behalf of her son D.Z., from action of the Board of Education of the North Colonie Central School District regarding student discipline.

Decision No. 15,681

(November 5, 2007)

O’Connell and Aronowitz, attorneys for petitioner, David R. Ross, Esq., of counsel

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the North Colonie Central School District (“respondent”) concerning the five-day suspension of her son, D.Z.  The appeal must be sustained.

During the 2006-2007 school year, D.Z. was a sophomore in respondent’s high school.  On May 4, 2007, he was accused of being under the influence of marijuana on school grounds along with another student, J.L.  On the same day, petitioner was told by the hall principal that an informal conference would take place on May 7, 2007.  The parties disagree as to whether petitioner was told of her right to question complaining witnesses.  On May 7, 2007, an informal conference was held and attended by school officials, but not J.L.  A notice of proposed suspension was provided to petitioner following the informal conference.  This notice informed petitioner that the hall principal recommended D.Z.’s suspension for five days and that she had the right to an informal conference with the right to question complaining witnesses.  By decision dated May 7, 2007, the principal suspended D.Z. from May 5 to 11, 2007.  This appeal ensued.

Petitioner alleges that the district violated Education Law §3214(3)(b) and §100.2(1)(4) of the Commissioner’s regulations by failing to provide her with timely notice of her right to an informal conference with the right to question complaining witnesses.  Petitioner contends that the district failed to produce J.L. at the informal conference.  Petitioner alleges that the district violated the school’s written policies.  Finally, petitioner alleges that the district failed to establish that D.Z. was under the influence of marijuana.  Petitioner requests that D.Z.’s five-day suspension be expunged.

Respondent alleges that petitioner was verbally informed of her right to an informal conference on May 4, 2007 and that petitioner never asked to interview J.L.  Respondent alleges that written notice of the suspension was provided to petitioner by personal delivery after the informal conference and before the suspension began.  Respondent contends that there were no procedural violations, that D.Z. is guilty of being under the influence of marijuana and that the five-day suspension is appropriate.

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 R.F., 43 Ed Dept Rep 206, Decision No. 14,972).  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 R.M. and L.M., 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).

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 (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

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 R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of R.F., 43 id. 206, Decision No. 14,972).

There is no showing here that the required written notification was given immediately and prior to the decision to suspend D.Z. as required by statute and regulation.  Respondent does not deny that the written notice was provided to petitioner on May 7, 2007, three days after the incident, and following the informal conference, but alleges that it was provided to petitioner before the suspension started later that day.  This is insufficient to meet the requirements of the Education Law and Commissioner’s regulations because the written notice was not provided in a manner which would notify petitioner of her statutory right to question complaining witnesses prior to the informal conference.  Absent written notice of her right to question complaining witnesses prior to the informal conference, petitioner was in effect denied her right to do so.

Furthermore, petitioner’s meeting with the principal and other school officials failed to constitute an informal conference.  Petitioner did not have an opportunity to question a complaining witness, J.L.  It is insufficient to provide merely an opportunity to speak with the principal without the complaining witness present, or an opportunity to speak with complaining witnesses without the principal present (Appeal of P.D., 46 Ed Dept Rep 50 Decision No. 15,438; Appeal of B.C. and A.C., 42 id. 395, Decision No. 14,891; Appeal of A Student Suspected of Having a Disability, 40 id. 542, Decision No. 14,552).

Accordingly, the five-day suspension from May 7 to May 11, 2007 must be annulled and expunged from D.Z.’s record.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent expunge from the student’s record any reference to a suspension from May 7 to May 11, 2007.

END OF FILE