Appeal of G.F. and T.F., on behalf of their son J.F., from action of the Board of Education of the Liverpool Central School District regarding student discipline.

Decision No. 16,348

(March 30, 2012)

Bond, Schoeneck & King, PLLC, attorneys for respondents, John A. Miller, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the decision of the Liverpool Central School District to suspend their son, J.F., from school for three days.  The appeal must be sustained.

During the 2010-2011 school year, J.F. was a senior in respondent’s high school and a member of its varsity volleyball team (“team”).  The record indicates that on September 27, 2010, during the team’s return bus trip from a match, the team’s coach reprimanded J.F. for engaging in inappropriate conduct during the game.  J.F. reacted negatively to this admonishment, and the coach advised him that if he intended to continue to engage in such unacceptable behavior, he should hand in his uniform.  In response, J.F. shouted profanity at the coach, disrobed, and threw his jersey and shorts toward the coach. 

On September 30, 2010, the coach contacted petitioners to advise them that J.F. had been terminated from the team for the rest of the season for his inappropriate conduct.  On October 5, 2010, petitioners attended a conference with respondent’s high school administrator, as acting school principal (“principal”), and the director of health.  The principal advised petitioners that he had obtained a copy of the coach’s statement detailing J.F.’s conduct on the bus.  Petitioners’ request to speak to the coach at such time was denied.  At the conference, however, J.F. admitted to having engaged in the alleged conduct. 

On October 6, 2010, the principal contacted petitioners by telephone and notified them that J.F. would be suspended from school for three days for his misconduct.  On October 8, 2010, petitioners met with respondent’s director of health who advised them that additional athletic consequences had been proposed, which included J.F.’s suspension from the basketball team for the beginning of the upcoming season, counseling and 20 hours of community service.  Petitioners then met with respondent’s executive director of secondary education on October 12, 2010 to discuss the disciplinary actions proposed to be taken against their son.

By letter dated October 9, 2010, the principal informed petitioners that J.F. would be suspended from school from October 13 to October 15, 2010.  On October 18, 2010, petitioners appealed the suspension to respondent’s superintendent who upheld the determination.  Petitioners then appealed to respondent.  By letter dated December 6, 2010, respondent upheld the superintendent’s decision to impose the three-day suspension.  Respondent did, however, set aside the athletic suspensions.  This appeal ensued.  Petitioners’ request for interim relief was denied on January 19, 2011.

Petitioners contend that respondent failed to provide timely written notice of the suspension and the opportunity to question the coach as a complaining witness at the conference.  They seek expungement of the three-day suspension from J.F.’s records.

Respondent contends that petitioners were given sufficient notice prior to J.F.’s suspension via telephone and the informal conference with principal and that the suspension was reasonable, particularly given J.F.’s admission to having engaged in the inappropriate conduct.  Respondent argues that petitioners are not entitled to the equitable remedy of expungement.

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).

Petitioners assert that they received the notice on October 13, 2010 – the first day of J.F.’s suspension.  Indeed, in its verified answer, respondent admits that petitioners were not provided with written notice of the suspension “before it began,” and states that the notice was “mailed” to petitioners on October 12, 2010.  Accordingly, the three-day suspension must be annulled and expunged from J.F.’s record.

I reject respondent’s argument that petitioners were “adequately informed” of the suspension by telephone.  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).  Further, holding an informal conference with the principal does not excuse the requirement for written notification to students and their parents and/or guardians explaining their rights to the informal conference and the opportunity to question complaining witnesses (see Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

Respondent claims that petitioners are not entitled to the equitable remedy of expungement because they admit that J.F. engaged in misconduct.  I disagree.  Although petitioners acknowledge that J.F. acted inappropriately, the primary contention in their appeal is that respondent failed to follow the statutory and regulatory procedures for the imposition of short-term suspensions.  Where a school district fails to comply with the notice requirements prescribed by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4), expungement is the appropriate remedy, even in cases in which a student’s guilt and long-term suspension have been upheld (see e.g. Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,252; Appeal of R.Y., 49 id. 336, Decision No. 16,046).

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the three-day suspension from October 13, 2010 to October 15, 2010 be expunged from J.F.’s records.

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