Decision No. 16,836
Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Hunter-Tannersville Central School District regarding student discipline.
Decision No. 16,836
(October 26, 2015)
Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, James A. Gregory, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hunter-Tannersville Central School District (“respondent”) to suspend her son (“student”) for three days. The appeal must be sustained in part.
During the 2011-2012 school year the student attended respondent’s high school. On October 5, 2011, the student sat next to a female student (“M.P.”) on the bus ride home and engaged in “sexually explicit touching.” Text messages sent between the student and M.P. beginning October 3, 2011 document that they arranged to engage in this behavior on the bus. When questioned, however, M.P. stated that she became scared when the student started guiding her hand toward his crotch and that she changed her mind and asked the student to stop. The student stopped the behavior upon her request. When the bus ride was over, M.P. told her mother, a district employee, that the student touched her without permission.
Both students were interviewed after the bus ride by Melinda McCool (“McCool”), the principal of respondent’s elementary school. After interviewing, the students McCool called Simon Williams (“Williams”), the principal of respondent’s middle/high school. Williams attempted to call petitioner on the afternoon of October 5, but was unsuccessful in reaching her.
The following day, October 6, Williams attempted to meet with the student at 8:15 a.m. to discuss “his version of events” but the student would not meet without petitioner being present. Williams met with petitioner, the student and McCool at 8:40 a.m. that morning. The record indicates that, at the end of the meeting, Williams stated that he was planning on suspending the student for three days and that petitioner gave Williams her fax number so that he could fax his final decision to her. At approximately 3:04 p.m. on October 6, Williams faxed a notice to petitioner which stated that the student was suspended starting the next day, October 7. The notice also stated that “the pupil and the person in parental relationship to such pupil will be given an opportunity for an informal conference.”
Petitioner met with the superintendent on October 7. The parties dispute the substance of that meeting. According to petitioner, the purpose of the meeting was to discuss how the suspension might affect the student’s college admissions. In its verified answer, respondent asserts that, during the meeting, the superintendent “refused” to overturn the suspension and that the meeting “dealt with the entire matter” of the student’s suspension, including the college admissions issue. Respondent’s superintendent wrote to petitioner on October 11 memorializing their discussion of the college admissions issue on October 7.
By letter to the district clerk dated October 11, petitioner asked that the “next step in the appeals process” be scheduled. On November 3, petitioner and her attorney appeared before respondent, which voted to uphold the disciplinary action. This appeal ensued.
Petitioner contends that she was not given the opportunity for an informal conference. Petitioner further states that there was no evidence that the student engaged in the alleged behavior, that the punishment was excessive and that a manifestation meeting was not held even though her son has an “active IEP/504 Plan.”
Respondent asserts that an informal conference was held with petitioner and the student on October 7, 2011. Respondent also asserts that the appeal is moot because the suspension was served and that a manifestation meeting was not necessary because the student was only suspended from instruction for three days during the 2011-2012 school year.
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 2011-2012 school year has ended and the student has served his suspension, therefore, except to the extent that petitioner seeks expungement of the student’s record, the appeal must be dismissed as moot.
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[b], 8 NYCRR §100.2[l]; 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[b], 8 NYCRR §100.2[l]).
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]). 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).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
In this case, respondent asserts that the October 6 meeting constituted the required informal conference. Respondent also admits that it faxed the notice to petitioner after that meeting. Thus, respondent failed to provide petitioner with the written notice until after the alleged informal conference occurred. Accordingly, under these circumstances, I find that respondent violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(1)(4) by not providing adequate notice and a genuine opportunity to question complaining witnesses (Appeal of a Student With a Disability, 53 Ed Dept Rep, Decision No. 16,578; Appeal of B.B., 49 id. 253, Decision No. 16,017; Appeal of J.Z., 47 id. 243, Decision No. 15,681). Absent written notice of her right to question complaining witnesses prior to the informal conference, petitioner was in effect denied the right to do so (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681).
In addition, the written notice provided to petitioner on October 6 did not inform her of her right to question complaining witnesses and, contrary to respondent’s assertions, petitioner was not given an opportunity to do so. Williams avers that the purpose of October 6 meeting was to ask the student “his version of events.” M.P. was not at the meeting and was not made available to be questioned by petitioner. Respondent asserts that because principal McCool, who originally questioned the students, participated in the meeting and answered questions from petitioner, this constituted an informal conference. I disagree. Although principal McCool investigated the matter and questioned the students, she did not observe the student’s participation in the incident and thus, she was not the complaining witness (Appeal of R.N.T. and M.T., 47 Ed Dept Rep 298, Decision No. 15,702; Appeal of J.Z., 47 id. 243, Decision No. 15,681). Although there have been circumstances where the principal was the complaining witness (cf. Appeal of C.M., 53 Ed Dept Rep, Decision No. 16,583 [where district’s interest in protecting student identities outweighed petitioner’s interest in questioning such students]; Appeal of E.S., 50 id., Decision No. 16,105 [where principal viewed videotape of student’s conduct]; Appeal of C.C. and R.C., 47 id. 295, Decision No. 15,701 [where principal observed student’s intoxicated state at school prom]; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666 [where principal conducted search of student’s vehicle and marijuana was found]), this is not the case before me.
Accordingly, the three-day suspension must therefore be annulled and expunged from the student’s record.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent’s three-day suspension of the student in October 2011 be expunged from his record.
END OF FILE
 I note that the petition states that the meeting between petitioner and the superintendent occurred on October 6, 2011, but the superintendent’s letter memorializing the meeting states that the meeting occurred on October 7, 2011.