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Decision No. 16,218

Appeal of G.P., on behalf of his son J.P., from action of the Board of Education of the Bay Shore Union Free School District regarding student discipline.

Decision No. 16,218

(March 31, 2011)

Law Office of Nicholas J. Agro, P.C., attorney for petitioner, Nicholas J. Agro, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Susan E. Fine, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the Bay Shore Union Free School District (“respondent”) to suspend his son, J.P., from school for two days.  The appeal must be sustained in part.

On September 30, 2009, the district notified petitioner and J.P.’s mother by telephone that J.P. was being suspended from school on October 1 and 2, 2009, for violating the school’s code of conduct on September 22, 2009 by fighting with another student and denying his involvement in the altercation when questioned by school personnel.    

That same day, petitioner met with the assistant principal.  The parties dispute whether petitioner requested an informal conference with the principal regarding the incident.  According to respondent, petitioner only requested an opportunity to question the parents of the other students involved in the altercation.  Apparently, J.P.’s mother also came to the school but met only briefly with the assistant principal and left with petitioner.  J.P. was permitted to remain in school for the rest of the day.  By separate letters dated September 30, 2009, the principal notified J.P.’s mother and petitioner of the suspension and the opportunity, upon request, for an informal conference with him, as well as the right to question witnesses.  Respondent claims that on September 30, the written notice was hand-delivered to J.P.’s mother, as the custodial parent, and mailed to petitioner.  On October 2, 2009, petitioner received the notice. 

J.P. served the suspension on October 1 and 2, 2009. On October 8, 2009, a tutor contacted J.P.’s mother to arrange for alternative instruction. 

On October 6, 2009, petitioner appealed J.P.’s suspension and, by letter dated October 14, 2009, respondent denied the appeal and petitioner’s request to expunge the suspension from J.P.’s record. This appeal ensued.

Petitioner alleges that respondent violated his son’s due process rights by failing to provide adequate notice of the suspension and an opportunity for an informal conference prior to the suspension.  He also claims respondent failed to provide alternative instruction to J.P. during the suspension.  Petitioner requests that the suspension be expunged from J.P.’s educational record.

Respondent maintains that the suspension was proper in all respects.  Respondent also asserts that it complied with the requirements regarding alternative instruction.

I must first address a procedural matter.  Respondent challenges the scope of the verified reply submitted by petitioner.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

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 a 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, 47 Ed Dept Rep 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 this case, respondent does not assert that the student posed a continuing danger or threat of disruption such that the written notice of suspension did not need to precede the suspension.  Accordingly, the issue before me is whether the written notice was properly provided by respondent prior to the suspension.  The parties dispute how and when the notice of suspension was delivered.  According to respondent, written notice of J.P.’s suspension on October 1 and 2 was hand-delivered to the residence of J.P.’s mother, the custodial parent, at 5:00 p.m. on September 30.  The unsworn delivery form, however, merely states “mail box” and the acknowledgement of receipt was not signed by J.P.’s mother.  J.P.’s mother submitted an affidavit wherein she averred that her mailbox is locked, that the notice was not found in or near her mailbox, and that she did not receive the notice until 3:00 p.m. on October 1, when it was slipped under her door.  Written notice was also mailed by first class mail to petitioner, who received it on October 2.

On the record before me, I cannot conclude that respondent provided adequate written notice of the opportunity for an informal conference prior to J.P.’s suspension on October 1.  As noted above, sending the written notice to petitioner by regular mail was inadequate.  In addition, respondent failed to provide any affidavits to contradict the mother’s sworn statement that the notice was not received until 3:00 p.m. on October 1, the first day of the suspension.  Although the assistant principal may have discussed the opportunity for an informal conference with J.P.’s mother and/or petitioner, oral communication is not a substitute for the required written notice. Therefore, I find that respondent did not provide sufficient notice and the suspension must be expunged from J.P.’s record.

With respect to petitioner’s claim regarding alternative instruction, 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  In view of the fact that the days for which the student would receive alternative instruction have passed, the matter is moot (seee.g.Appeal of C.M., 50 Ed Dept Rep __, Decision No. 16,142).

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent expunge from J.P.’s records any reference to the suspension on October 1 and 2, 2009.

END OF FILE.