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Decision No. 16,543

Appeal of D.O., on behalf of her daughter D.O., from action of the CitySchool District of the City of Long Beach regarding student discipline.

 

Decision No. 16,543

 

(August 30, 2013)

 

Law Office of Suzanne Myron, attorneys for petitioner, Suzanne Myron, Esq., of counsel

 

Ingerman Smith, L.L.P., attorneys for respondent, Joseph E.Madsen, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the City School District of the City of Long Beach (“respondent”) to suspend her daughter, D.O.,from school for three days. The appeal must be sustained in part.

 

On December 13, 2011, D.O., a 12th grade student at respondent’s high school, was involved in an incident at the school. According to respondent, a teacher employed at the school observed D.O. in the hallway talking into a cellphone and told D.O. to put the phone away and return to class, at which time D.O. said “suck my... [expletive]you... [expletive]” and walked into a bathroom.

 

The “Long Beach Public Schools Code of Conduct Incident Referral” (“incident referral”) included with respondent’s answer indicates that this incident took place at 11:55 a.m. Petitioner states that she received a phone call from respondent’s vice-principal, who stated that he was suspending D.O. immediately and that petitioner needed to “come get D.O. now.” Petitioner asserts that the vice-principal said he could not meet with her at that time and that she would need to make an appointment with the principal if she wished to speak with someone. The incident referral noted that the vice-principal “contacted[petitioner] 12/13/11 12:15 pm.” The incident referral also noted “Parental Contact” under “Administrative Action Taken,” and under “Suspension” indicated “Out of School.”

 

The vice-principal contends that, as part of an investigation into the matter, he spoke with the teacher who observed the incident. He also interviewed D.O., who admitted that she made the statement but said that the statement was directed not to the teacher, but rather to the person to whom she was speaking on the phone. The vice-principal further states, as does the principal, that he did not impose the suspension, and that it was the principal who imposed the suspension.

 

Petitioner contends that when she came to pick D.O. up, she asked to meet with the principal and that a secretary told her to come back later. Petitioner states that she then took D.O. home. However, the vice-principal contends that D.O. left the high school building without permission.

 

The record indicates that petitioner met with the principal at 3:00 p.m. on December 13, 2011. Petitioner asserts that, during the meeting, she asked to speak with witnesses who had seen the incident but was told that the witnesses were not available because they had left for the day. According to the principal, at no time during the conference did he advise petitioner that the teacher who had reported the incident was unavailable. The principal also contends that petitioner did not request to speak to the teacher and that if petitioner or D.O. had disputed the statement attributable to D.O., he would have had the teacher summoned to attend the conference. Petitioner states that after the meeting with the principal, she met with an assistant superintendent from 4:00 p.m. to 5:00 p.m. who later called to tell her that he upheld the suspension.

 

By letter to petitioner dated December 13, 2011, the principal stated that “[t]his letter acknowledges the conversation regarding the suspension of [D.O.] and provides formal notice of that suspension.” The principal’s letter further informed petitioner that D.O. was suspended “for a period of three days” and that such “suspension will commence on December 14 through December16, 2011....” The letter also stated:

 

While you are not required to meet with

me at this time should you desire an

informal conference I am available

between the hours of 7:30 – 3:30. If

you so request please contact my office

... to schedule such a meeting. At

that time you may question complaining

witnesses if you so desire.

The principal states that after the December 13, 2011conference with petitioner, “arrangements were made to hand deliver the letter of suspension to the parent; however, the parent declined to accept it.” Petitioner states that she received the suspension letter “that same evening[December 13, 2011] by messenger delivery.” Petitioner also states that, on December 14, 2011, another letter was received from the principal upholding the suspension.

 

Petitioner states that on December 16, 2011 she met with respondent’s superintendent, who told her that he would uphold the suspension but did not issue any letter. This appeal ensued.

 

Petitioner alleges that D.O.’s due process rights were violated because petitioner was not afforded the opportunity to confront witnesses to the incident at the informal conference; the vice-principal was not authorized to impose an out-of-school suspension; there was no thorough investigation of the incident; the suspension was imposed prior to the investigation and informal conference; the letter imposing the suspension arrived after the suspension was imposed; the letter regarding the suspension referenced Education Law §3214 which does not address short-term suspensions; and the letter regarding the imposition of the suspension did not refer to D.O.’s right to appeal.

 

Respondent contends that the appeal should be dismissed as moot and for failure to exhaust administrative remedies. Respondent also maintains that it acted lawfully and followed all proper procedures; D.O.’s conduct remains undisputed; D.O.’s conduct posed an “ongoing threat of disruption to the academic process;” the principal imposed the suspension; the district’s investigation was thorough; Education Law §3214(3) expressly refers to short-term suspensions; the principal verbally informed the petitioner of her right to appeal to the superintendent; and petitioner failed to demonstrate that the sanction is excessive.

 

I will first address several procedural issues. 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.

I decline to dismiss the appeal for failure to exhaust administrative remedies. Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of F.M., 48 Ed Dept Rep 244,Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578; Appeal of M.A., 45 id. 206, Decision No.15,303). While respondent states that the principal “verbally informed the parent of her right to appeal to the superintendent,” the record does not indicate that the principal advised petitioner that if she was not satisfied with the decision and wished to pursue the matter, she must “file a written appeal to the superintendent within five business days,” as required by respondent’s code of conduct(“code”). Further, while respondent’s code also states that parents must file a written appeal to the board of education within 30 business days of the date of the superintendent’s decision and that only final decisions of the board may be appealed to the Commissioner within 30days of the decision, the suspension letter of December 13,2011 contains no notice of any such requirements. Instead, the letter merely states that D.O.’s conduct was “a violation of the District’s code of conduct and provisions of our school’s student handbook concerning behavior.” I find that this oblique reference to the code in the suspension notice is insufficient to provide notice of a restrictive policy of administrative exhaustion (Appeal of L.L., 51 Ed Dept Rep, Decision No. 16,334; Appeal of F.M.,48 id. 244, Decision No. 15,849). Accordingly, in the absence of such notice, I will not dismiss this appeal for failure to exhaust administrative remedies.

 

Respondent asserts that the appeal should be dismissed as moot given that D.O. has served the short-term suspension. 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). The suspension has been served and, therefore, the appeal is moot except to the extent petitioner seeks expungement of D.O.’s records (Appeal of L.L., 51 Ed Dept Rep, Decision No. 16,334;Appeal of a Student with a Disability, 49 id. 452, Decision No. 16,079; Appeal of a Student Alleged to Have a Disability, 49 id. 302, Decision No. 16,034).

 

I now turn to the merits. 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], 8NYCRR §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 Rep19, 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).

 

Here, respondent violated Education Law §3214(3)(b)(1)and §100.2(l)(4) of the Commissioner’s regulations by failing to provide petitioner with notice and an opportunity for an informal conference with the principal at which she could question complaining witnesses prior toD.O.’s suspension. As described above, the parties dispute whether petitioner requested to meet with complaining witnesses during the December 13, 2011 meeting with the principal.

 

However, although petitioner was made aware of her right to an informal conference and to question complaining witnesses in the December 13, 2011 suspension letter, the record indicates that such letter was delivered to petitioner after she met with the principal. This is insufficient to meet the requirements of Education Law§3214(3)(b)(1) and §100.2(l)(4) of the Commissioner’s regulations. Written notice must be provided in a manner which would notify petitioner of her statutory right to question complaining witnesses prior to the informal conference (Appeal of B.B., 49 Ed Dept Rep 253, Decision No. 16,017). It is undisputed that the written notice of D.O.’s short-term suspension was not delivered to petitioner’s home until after the 3:00 p.m. meeting on December 13, 2011. On these facts, absent written notice of her right to question complaining witnesses prior to the meeting with the principal, petitioner was in effect denied her right to do so and I cannot infer a knowing waiver(Appeal of B.B., 49 Ed Dept Rep 253, Decision No. 16,017;see also Appeal of J.Z., 47 id. 243, Decision No. 15,681).

 

Moreover, once written notice was provided, petitioner was not afforded an opportunity for an informal conference before the suspension began the next school day. Even if the December 13, 2011 meeting did constitute an informal conference, “ holding an informal conference with the principal does not excuse the requirement for written notification to students and their parents ... explaining their rights to the conference and the opportunity to question complaining witnesses” prior to the suspension(Appeal of R.J and D.J., 44 Ed Dept Rep 191, Decision No.15,145; Appeal of a Student with a Disability, 40 id. 47,Decision No. 14,418; Appeal of a Student with a Disability,38 id. 378, Decision No. 14,059). It is insufficient to provide merely an opportunity to speak with the principal without the complaining witnesses present, or an opportunity to speak with complaining witnesses without the principal present (Appeal of B.B., 49 Ed Dept Rep 253,Decision No. 16,017; Appeal of J.Z., 47 id. 243, Decision No. 15,681; Appeal of P.D., 46 id. 50, Decision No. 15,438).

 

Furthermore, I note that the December 13, 2011 suspension letter did not state that D.O.’s presence in the school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process which would allow the notice and opportunity for an informal conference to take place as soon as practicable after the suspension began. To the contrary, respondent states that D.O. left the high school building without permission after the incident. I find respondent’s belated attempt to assert in its memorandum of law that D.O.’s presence in school posed an ongoing threat of disruption to the academic process does not correct its error in suspending D.O. without first providing the required notice and informal conference (see Appeal of L.L., 51 Ed Dept Rep, Decision No. 16,334). Accordingly, the three-day suspension must be annulled and expunged from D.O.’s record.

 

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

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of D.O. from December 14 to December 16, 2011 be expunged from her record.

 

END OF FILE