Appeal of a STUDENT WITH A DISABILITY, from action of the Board of Education of the Great Neck Union Free School District, James Welsch, principal, and Thomas P. Dolan, superintendent of schools regarding student discipline.

Decision No. 16,814

(August 18, 2015)

Frazer & Feldman, LLP, attorneys for respondents, Joseph Lilly, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) affirming the suspension of petitioner’s son (the “student”), a student with a disability.  The appeal must be sustained. 

Petitioner’s son attended eighth grade in respondent’s district during the 2013-2014 school year.  On December 19, 2013, the student was allegedly involved in an altercation at school.  According to the record, a teacher received a report that the student grabbed another student’s (the “victim”) arm, bent it behind his back, and attempted to push his head into a door.  The teacher reported the incident to respondent’s Dean of Students (the “Dean”) who immediately commenced an investigation and spoke to the victim and other students who were present at the time of the incident.  The Dean also interviewed petitioner’s son who admitted that he grabbed the victim’s arm and bent it behind the victim’s back but denied that he had attempted to push the victim’s head into a door.  After concluding her investigation, the Dean reported the incident to the principal who determined that the student should be suspended for one day, effective December 20, 2013.  

The Dean contacted the student’s mother by telephone on December 19, 2013, the day of the incident, and advised her of the alleged facts surrounding the incident and that the student would be subject to a one day suspension to commence the following day.  The student’s mother was also advised that the student and his parents were entitled to request and attend an informal conference to discuss the matter. An informal conference was held the following morning, December 20, 2013, which the student, petitioner and the student’s mother attended.  At the informal conference the principal provided petitioner with a written notice of the charges against the student and the impending one day suspension.  The notice also advised petitioner that he would be able to question complaining witnesses during the informal conference. The principal and the Dean were present at the conference and petitioner and the student’s mother were given the opportunity to “make their case as to why the suspension should not be imposed.”  At the conclusion of the conference, approximately 30 minutes later, petitioner was advised that the student’s one day suspension would not be overturned.

By letter dated January 6, 2014, an attorney representing petitioner filed an appeal with respondent’s superintendent.  By letter dated January 21, 2014, respondent’s superintendent denied petitioner’s appeal and upheld the student’s suspension.  By letter dated January 22, 2014, petitioner’s attorney appealed to respondent.  By letter dated February 12, 2014, respondent denied petitioner’s appeal and upheld the student’s suspension.  This appeal ensued.

Petitioner alleges that respondent failed to provide proper written notice prior to the suspension as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) and deprived him of the opportunity to ask questions of complaining witness and, therefore, challenge the student’s suspension.  Petitioner further alleges that the student’s misconduct was a manifestation of the student’s disability and not a behavioral issue for which suspension would be appropriate.  Petitioner seeks annulment of the suspension and expungement of the student’s records.

Respondent denies petitioner’s allegations and contends that there were no procedural violations and that the penalty imposed was appropriate.  Respondent further contends that the suspension of the student was not arbitrary or capricious and was in all respects proper.

I must first address the 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.

The Commissioner of Education lacks jurisdiction to consider any claims brought under the Family Educational Rights and Privacy Act (“FERPA”).  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502).

To the extent that the student has served the short-term suspension, the appeal must be dismissed as moot.    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 the student’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).

Turning 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], 8 NYCRR §100.2[l][4]).

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).

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).

In the instant appeal, the parties do not dispute that petitioner did in fact receive a telephone call on December 19, 2013, the day of the incident, and written notice on the morning of December 20, 2013, the day of the proposed one day suspension; however, petitioner alleges that he did not receive the written notice prior to the student’s one day suspension which was to be served on December 20, 2013.  Petitioner further alleges that the student’s presence in the school did not pose a continuing danger to persons or property or an ongoing threat of disruption to the academic process which would warrant a delay in delivery of such written notice.  Petitioner also argues that the written notice was improper for failing to provide sufficient notice of the charged misconduct.

Indeed, in its verified answer, respondent admits that petitioner was provided with written notice of the suspension “45 minutes after the beginning of the school day on December 20. The meeting itself began only 30 minutes after the beginning of the school day, and only three minutes after the start of first period.”  Respondent also alleges that “the time that elapsed between the beginning of the school day, and the delivery of the written notice of suspension, was so minor as to constitute harmless error, and should not be used as a basis to invalidate the suspension.”  I find these arguments unavailing.  Furthermore, respondent does not allege nor does the record indicate that the student’s presence in the school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process to warrant a delay in delivery of the notice of suspension and opportunity for an informal conference.  Petitioner, thus, should have been provided with notice and an opportunity for an informal conference prior to the student’s suspension (see Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,252; Appeal of J.V.O., Jr., 50 Ed Dept Rep, Decision No. 16,234).

I also find that respondent’s notification of the suspension by telephone is inadequate.  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). Accordingly, the suspension must be annulled and expunged from the student’s record.

With respect to petitioner’s argument that the student’s misconduct was a manifestation of the student’s disability and not a behavioral issue for which suspension would be appropriate, an isolated short-term suspension does not constitute a significant change in educational placement sufficient to trigger the due process protections of the Individuals with Disabilities Act (Appeal of a Student with a Disability, 34 Ed Dept Rep 634, Decision No. 13,435; Appeal of Cellini, 30 id. 473, Decision No. 12,539; Appeal of a Child with a Handicapping Condition, 28 id. 342, Decision No. 12,130).  Rather, the obligation of a school district to conduct a manifestation determination is only mandated when a “disciplinary change in placement” has been proposed (34 CFR 300.523, 8 NYCRR 201.4, Appeal of a Student with a Disability, 42 Ed Dept Rep 192, Decision No. 14,818).  In the present case, the one day suspension of the student did not constitute a disciplinary change in placement warranting respondent to conduct a manifestation determination relative to the alleged misconduct.In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent’s suspension of the student on December 20, 2013 be expunged from his record.

THE APPEAL IS DISMISSED.

END OF FILE