Appeal of T.L., on behalf of his son J.L., from action of the Board of Education of the Hyde Park Central School District regarding student discipline.

Decision No. 15,717

(February 1, 2008)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the action of the Board of Education of the Hyde Park Central School District (“respondent”) concerning the four-day suspension of his son, J.L.  The appeal must be sustained in part.

During the 2006-2007 school year, J.L. was a student at respondent’s middle school.  On March 27, 2007, J.L. was involved in a fight on the morning school bus.  A student services monitor contacted the assistant principal and informed her that the bus driver reported the incident and stated that he had to pull over to break up the fight.

The assistant principal interviewed the participants and other student witnesses.  J.L. admitted that he punched a student on the bus after being poked in the head.  The assistant principal recommended to the principal that J.L. be suspended for four days.

The assistant principal called J.L.’s home to advise his parents of the suspension.  However, J.L.’s sister answered the telephone, indicating that her parents were at work.  There is some dispute as to the remaining content of that conversation, but shortly thereafter petitioner arrived at the school.  He was provided with a copy of an office referral filled out by the assistant principal that described the incident and indicated that J.L. was suspended from March 27, 2007 through March 30, 2007.  Petitioner also was offered a suspension letter signed by the principal but wanted to discuss the matter with the assistant principal before taking the letter.

Petitioner spoke to the assistant principal, with J.L. present, regarding the incident.  Petitioner apparently disagreed with the length of suspension and asked the assistant principal to reconsider her recommendation.  The assistant principal agreed to further investigate.  Upon leaving the office with J.L., petitioner took the suspension letter signed by the principal.  It stated that J.L. was suspended from March 27, 2007 through March 30, 2007 and also stated, “You and your student have been offered the right to an informal conference concerning this matter, including the opportunity to question complaining witnesses.”  The assistant principal subsequently reviewed J.L.’s disciplinary record and spoke with the principal.  She then called petitioner to inform him that the principal determined not to alter the length of suspension.

Petitioner appealed the suspension to the superintendent and to respondent.  Petitioner presented a written statement to respondent at its April 12, 2007 meeting.  Respondent upheld the four-day suspension.  This appeal ensued.

Petitioner seeks expungement of the suspension from J.L.’s records.  Petitioner challenges the adequacy of the notice of his son’s right to an informal hearing prior to imposition of the suspension, including the right to question witnesses.  Petitioner also seeks an order directing respondent to incorporate into its code of conduct a policy permitting submission of “contradictory testimony” where no hearing transcript is available for respondent’s consideration.

Respondent asserts that it complied with all applicable notice requirements prior to suspending J.L.  Respondent also argues that there is no basis for directing it to adopt the policy that petitioner demands into its code of conduct.

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]).

Respondent did not comply with this mandate.  As noted, except in the case in which a student’s presence in the school is considered a continuing danger or ongoing threat of disruption to the academic process, written notice and an opportunity for an informal conference, at which complaining witnesses may be questioned, must take place before imposition of the suspension.  Respondent does not dispute that written notice of the right to an informal conference and to question witnesses was provided to petitioner on March 27, 2007 – the first day of the suspension.  Furthermore, it does not appear, nor does respondent argue, that the student’s presence in the school was considered a continuing danger or ongoing threat of disruption.

Respondent’s reliance on Appeal of Pronti, 31 Ed Dept Rep 259, Decision No. 12,636, in arguing for dismissal of the appeal is misplaced.  In Pronti, the student alleged, among other things, that he was not afforded a conference or the right to question witnesses prior to suspension, but was only permitted to present his version of events.  The school district was found to have substantially complied with then existing due process requirements prior to imposing a short-term suspension.  However, Pronti predates amendments to the above cited provisions of the Education Law §3214(3)(b)(1) [Ch. 181 of the Laws of 2000] and §100.2(l) of the Commissioner’s regulations that now specifically require that notice and an opportunity for an informal conference take place before suspension, except in limited circumstances not applicable here.  Thus, Pronti is inapposite.  Accordingly, the four-day suspension from March 27, 2007 through March 30, 2007 must be annulled and expunged from J.L.’s record.

With respect to petitioner’s demand that respondent be ordered to adopt a policy permitting presentation of contradictory testimony in appeals to the board where no transcript is available, petitioner provides no legal authority for such an order and, indeed, there is none.

In view of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the suspension of J.L. from March 27, 2007 through March 30, 2007, be annulled and expunged from his record.

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