Appeal of M.I., on behalf of his son K.I., from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding student discipline.

Decision No. 16,840

(October 26, 2015)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) to suspend his son.  The appeal must be sustained in part.

The record indicates that, during the 2011-2012 school year, K.I. resided with his mother in respondent’s district and attended respondent’s high school.  On April 12, 2011, the high school principal was informed that K.I. had been involved in a fight on April 8, 2011.  Upon learning that K.I. made statements about endangering his own life, the principal referred K.I. to the school social worker.  On April 13, K.I. and his mother met with the social worker.  Also on April 13, K.I. and his mother met with the principal for the purpose of discussing the April 8 fight.

On April 15, the principal met with petitioner, K.I., and K.I.’s mother to discuss the principal’s proposal to suspend K.I.  Although the parties dispute the substance of this meeting, the record indicates that, during the meeting, the principal provided petitioner and K.I.’s mother with written notice, dated April 13, that he was “considering suspending” K.I. from school “for up to five days” for certain conduct and informing them of their right to request an informal conference (“April 13 notice”).  According to petitioner, the principal stated at the April 15 meeting that any suspension imposed on K.I. would be at most two days.  Petitioner also asserts that the principal stated that, because K.I. met with the principal on April 13, if he “voluntarily went home ... after the April 15, 2011 meeting [it would] obviate a suspension.”

The principal disputes petitioner’s account of the April 15 meeting, but avers that he informed petitioner that if he decided to suspend K.I. for the violations stated in the April 13 notice, April 15 would be the first day of his suspension.  The principal further explains that, in response to petitioner’s statements regarding a direct appeal to the superintendent, he attempted to contact the superintendent via telephone in petitioner’s presence.  Because the superintendent was unavailable, the principal informed petitioner that he would not provide any “final notice of suspension” until he was able to contact the superintendent.

Thereafter on April 15, the principal made a final determination to suspend K.I. from school on April 15, 27 and 28.  The record indicates that the principal directed respondent’s dean of students (“dean”) to contact both petitioner and K.I.’s mother to inform them of his final determination.  The principal avers that the dean spoke with K.I.’s mother by telephone at approximately 2:00 p.m., left voice messages for petitioner, and arranged for the district’s messenger to hand-deliver the final suspension letter (“April 15 final suspension letter”) to K.I.’s mother’s address, which was the student’s address of record.

Petitioner appealed and, by letter dated May 13, 2011, respondent upheld the suspension.  This appeal ensued.

Petitioner seeks expungement of the three-day suspension from K.I.’s record.  He argues that “service” of the April 15 final suspension letter was “not effectuated” and that there is no basis in the record for respondent’s determination that K.I. is guilty of the conduct charged. In the alternative, petitioner contends that the penalty imposed was excessive. 

Respondent maintains that petitioner has failed to meet his burden of proof and that the district fully complied with Education Law §3214(3)(b)(1).  Respondent contends that the penalty was proportionate to the severity of the offense and that its determination was not excessive, arbitrary or capricious. 

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).

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).

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, the record indicates that petitioner and K.I.’s mother received the April 13 notice at the April 15 meeting.  The record also indicates that after the meeting on April 15, the principal reviewed the results of the investigation of the incident and made a final determination to suspend K.I. for three days, including April 15.  At some point after verbal notification was provided to K.I.’s mother via a telephone conversation at approximately 2:00 p.m. on April 15, written notice of the final determination was hand-delivered to K.I.’s mother’s address.  Voice messages were also left for petitioner.

In the April 15 final determination letter, the principal states that an “informal conference with me was held on April 13, 2011.”  However, respondent admits that the April 13 notice describing the charges and the right to question complaining witnesses was not provided to petitioner and K.I.’s mother until the April 15 meeting - after the April 13 informal conference had occurred.  Even assuming, arguendo, that April 15 meeting also constituted an informal conference, the record indicates that petitioner and K.I.’s mother were first provided with written notice of the charges and their right to question complaining witnesses during that meeting.  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 his 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).  The three-day suspension must therefore be annulled and expunged from K.I.’s record.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of K.I. on April 15, 27 and 28, 2011 be expunged from his record.

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