Appeal of J.S. and J.S., on behalf of their daughter J.S., from action of the Board of Education of the Kenmore-Tonawanda Union Free School District regarding student discipline.

Decision No. 17,032

(January 25, 2017)

Watson Bennett Colligan & Schechter, LLP, attorneys for petitioners, Carolyn Nugent Gorczynski, Esq., of counsel

Harris Beach PLLC, attorneys for respondent, Tracie L. Lopardi and Amanda J. Carden, Esqs., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Kenmore-Tonawanda Union Free School District (“respondent”) to suspend their daughter, J.S., and requests that the suspension be expunged from her record.  The appeal must be sustained.

During the 2011-2012 school year, J.S. was a student at respondent’s high school and a member of the varsity girls basketball team (“team”).  On December 2, 2011, J.S., and other members of the team, allegedly engaged in a pre-game chant that included a racial slur.  According to an affidavit from the principal of respondent’s high school (“principal”), high school administrators became aware of the aforementioned chant when investigating another disciplinary matter on December 6, 2011.  The principal and an assistant principal promptly commenced an investigation regarding the chant.  The investigation included interviewing various students, including members of the team, “viewing videos and addressing these matters with some students’ parents.”  The investigation concluded on December 8, 2011.  According to the principal’s affidavit, during the investigation “tensions throughout the building, as well as the [d]istrict, were exceptionally high.  The volatile subject matter and tense atmosphere has created an ongoing threat of disruption of the academic process.”   

On December 7, 2011, in lieu of practice, a meeting was held with the team members.  In attendance were the principal, two assistant principals, the athletic director, the team’s coach, team members, and three parents, including one of the petitioners, J.S.’s mother.  Administrators announced that the students would be interviewed individually and J.S.’s mother requested to be present during J.S.’s questioning.  Her request was denied.  During her interview, J.S. completed a “signed response” in which she admitted the alleged misconduct.   

On December 8, 2011, the principal verbally informed J.S. that she was being suspended on December 9, 2011 and December 12, 2011. That same day, the principal directed the assistant principals to contact the parents of the suspended students via telephone to inform them of the suspension, “request that they pick up their child, and offer an informal conference.”  According to the principal’s affidavit, petitioners initially spoke with an assistant principal and scheduled an informal conference for Tuesday, December 13, 2011, “which was as soon as was reasonably practicable after the suspension.”  Later in the day on December 8, J.S.’s father spoke with the principal regarding the suspension.  According to the principal’s affidavit, J.S.’s father expressed disappointment with the investigation, claimed his daughter’s suspension was unfair and also expressed concern for his daughter’s safety.  The principal asserts that he similarly had concerns for J.S.’s “safety, (as well as all of those involved and the other disciplined students), as well as the ongoing threat of disruption to the academic process, which is why the suspension was imposed ....”       

By letter dated December 8, 2011,  the principal notified petitioners that he was imposing a two-day out-of-school suspension from December 9, through December 12, 2011 as a penalty for J.S.’s conduct on December 2, 2011.  Specifically, the letter stated that J.S. participated in a “defamatory practice” where members of the team chanted the racial slur and that such participation violated the district’s code of conduct.  The letter included notice of petitioners’ right to request an informal conference and to question complaining witnesses. According to the principal’s affidavit, the suspension notice was “mailed” on December 8, 2011.  Petitioners allege that they did not receive written notice of the suspension until “mid-day on Friday, December 9, 2011,” after J.S. had begun to serve the suspension. 

An informal conference was held on December 13, 2011, after J.S. had served the suspension. At that meeting, petitioners met with the principal and verbally requested that the suspension be expunged from J.S.’s record due to the principal’s failure to comply with notice and meeting requirements. By letter dated December 20, 2011, the principal denied petitioners’ request and advised them of their right to appeal to the superintendent.  Petitioners had already appealed J.S.’s suspension to the district’s superintendent (“superintendent”) by letter dated December 15, 2011.[1] 

In a written determination dated December 30, 2011, the superintendent upheld the suspension.  In his determination, the superintendent stated that “once it was determined which students were involved ... [their] presence in the school posed a continuing danger to persons or property.”  By letter dated January 18, 2012, petitioners appealed to respondent. In a written determination dated February 7, 2012, respondent upheld the suspension.  This appeal ensued. 

Petitioners argue that the district failed to comply with procedural due process, specifically when it suspended J.S. without prior written notice or the opportunity for an informal conference.  Petitioners assert that respondent’s refusal to expunge the suspension is in “error of law and/or arbitrary and capricious.”  Petitioners allege that respondent has failed to apply its code of conduct in a “fair and equitable fashion” and has failed to investigate and address improper conduct of another student.  Finally, petitioners argue that J.S. was “improperly interrogated” by district administrators regarding the alleged misconduct.

Respondent argues that the petition should be dismissed because petitioners failed to meet their burden of proof.  Respondent further argues that J.S. admitted that she participated in the charged misconduct, therefore, the suspension is based on competent and substantial evidence.  Respondent contends that a two-day suspension for the charged misconduct is “more than fair” and, therefore, not so excessive as to warrant substitution of the board of education’s judgment, and that all actions taken by the district were in good faith and pursuant to its powers and duties.    Respondent further argues that the petition should be dismissed as moot because J.S. already served her suspension.  Finally, respondent argues in its memorandum of law that petitioners’ reply and supporting affidavit contain new allegations and must be disregarded.      

First I will address the procedural matters.  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 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 from school has been served and, therefore, the appeal is moot, except to the extent petitioners seek expungement of the suspension from J.S.’s record. 

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 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 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).

Petitioners assert that they did not receive written notice of the short-term suspension until the afternoon of December 9, 2011, after J.S. started to serve the suspension. In its answer, respondent denies knowledge or information sufficient to form a belief as to when petitioners received the notice, but does assert that it provided petitioners with written notice dated December 8, 2011.  According to the principal’s affidavit, the suspension notice was “mailed” on December 8, 2011.  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]).  Respondent does not assert, and the notice does not indicate that it was delivered by a method other than regular mail.  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).  Therefore, the question becomes whether J.S. posed a “continuing danger to persons or property or an ongoing threat of disruption to the academic process” such that the notice and opportunity for an informal conference could take place as soon after the suspension as reasonably practicable, rather than prior to the suspension (Education Law §3214[3][b][1]).

Petitioners argue that the first time respondent alleged that J.S.’s presence in school posed a continuing danger to persons or property was in the superintendent’s written determination upholding the suspension dated December 30, 2011.  Petitioners further argue that J.S. could not have posed a danger because she attended school for four days after the alleged misconduct and that there were “no incidences of danger or disruption caused by the student.”  Respondent asserts that district officials were not aware of the chant until December 6, 2011, four days after it occurred, and that the investigation continued until December 8, 2011.  An affidavit from the principal asserts that during the investigation “tensions” throughout the district were “exceptionally high” and that “[t]he volatile subject matter and tense atmosphere had created an ongoing threat of disruption of the academic process.”  He also asserts that four team members left school early on December 7, 2011, because they “were feeling threatened and concerned for their safety.”    

Despite the principal’s assertions summarized above, the notice of suspension dated December 8, 2011, does not state that J.S.’s presence in school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process, yet J.S. was suspended before petitioners received the notice.  The principal’s assertion that the student’s continued presence in school posed a threat of disruption is undercut by the fact that the student continued to attend school for four days after the incident without any evidence of disruption (see e.g. Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036).  Moreover, even if I accepted the premise that the student’s presence posed a continuing treat of disruption, I find that respondent violated 8 NYCRR §100.2(l)(4) by failing to conduct the informal conference as soon after the suspension as reasonably practicable.  An informal conference held after the suspension has been served thwarts the purpose of the informal conference, since the principal is no longer able to modify the suspension, and scheduling the informal conference after the suspension is unreasonable.  Petitioners, thus, should have been provided with an opportunity for an informal conference prior to J.S.’s suspension (see Appeal of L.L., 51 Ed Dept Rep, Decision No. 16,334; Appeal of F.M., 48 id. 244, Decision No. 15,849).   

The record before me indicates that the first time respondent alleged in writing that J.S.’s presence in the school posed a continuing danger to persons or property was in the written determination upholding the suspension from the superintendent dated December 30, 2011.  This does not correct its error of suspending J.S. without providing written notice and an opportunity for an informal conference.  Accordingly, the two-day suspension must be annulled and expunged from J.S.’s record.

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 J.S. from December 9, 2011 to December 12, 2011 be expunged from her record.

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