Appeal of C.B.R., on behalf of her son, from action of the Board of Education of the North Babylon Union Free School District regarding student discipline.

Decision No. 17,211

(October 10, 2017)

Joseph V. Cozzo, Esq., attorney for petitioner

Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

ELIA, Commissioner--Petitioner appeals the determination of the Board of Education of the North Babylon Union Free School District (“respondent”) to impose discipline on her son (“the student”).  The appeal must be sustained in part.

During the 2012-2013 school year, the student attended tenth grade at respondent’s high school.  The student participated in a physical altercation involving a number of students in the cafeteria on September 14, 2012.  On the same day, petitioner received a hand-delivered letter from the high school principal.  The letter informed her that the student was being suspended for five days, from September 19 through September 25.  The letter further informed petitioner that she was entitled to an informal conference to discuss the suspension and “meet any complainants.” 

On September 19, the district sent a letter by certified mail to petitioner, which set forth the charges against the student and reiterated that he would be suspended for five days, commencing on the date of the letter.  This letter again informed petitioner of her right to request an “immediate informal conference” with the principal and to ask questions of complaining witnesses at that meeting.  According to the record, an informal conference in this matter was not held.

In a letter dated September 20, the superintendent indicated that a long-term suspension hearing would be convened on September 24.  This hearing convened as scheduled.  At the hearing, the district sought to amend the charges against the student regarding his role in the altercation by deleting the word “caused” and substituting the words “participated in.”  Petitioner and the student agreed to this amendment.[1]  After the hearing had begun, but before any substantive testimony was taken, petitioner asked for an adjournment of the hearing.  The hearing was then adjourned and reconvened on September 27. 

At the September 27 hearing date, upon conclusion of its case, respondent sought to further amend the charges against the student to reflect that the student engaged in a physical altercation with one student, rather than “a number of students,” and to remove the allegation that the student had “ignored the directives and gestures of several security team members to stop or not engage in the physical altercation.”  Petitioner and the student consented to this second amendment.  At the September 27 hearing, the student admitted to the charges as amended.  The hearing officer found the student guilty, but reserved decision regarding a penalty.

On October 1, the superintendent issued her decision, which adopted the hearing officer’s recommendation and imposed a penalty of suspension through April 12, 2013, the end of the third quarter.  Petitioner appealed the superintendent’s decision to respondent.  By letter dated October 19, petitioner’s attorney was informed that respondent upheld the suspension.  This appeal ensued.

Petitioner contends that she was not informed of the right to an informal conference prior to imposition of the student’s five-day suspension and that no such conference was ever held.  Petitioner seeks expungement of the five-day principal’s suspension because there was no notice and opportunity for the informal conference prior to the suspension; therefore, petitioner asserts that she was deprived of her right to question complaining witnesses.  Petitioner also contends that the second amendment to the charges violated the student’s due process rights.  Petitioner also seeks expungement of the continued suspension of the student from the first day of the superintendent’s hearing until the superintendent rendered her determination.  Finally, petitioner alleges that the suspension imposed was excessive and requests that it be expunged.

Respondent asserts that the September 14 letter sufficiently apprised petitioner of her right to an informal conference prior to the five-day suspension.  Respondent also contends that neither petitioner nor the student objected to the amendments to the charges against the student, and that, in any event, the student admitted to the second amended charge.  Respondent denies that the student improperly remained suspended from September 27 to October 1 and argues that any such delay was harmless in light of the penalty which was ultimately imposed.  Respondent additionally contends that the student’s suspension was based on competent and substantial evidence, including a video recording of the altercation, as well as credibility determinations made by the hearing officer.  

I note initially that 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, No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The student’s suspension ended in April 2013.  To the extent that his suspension has been served, any claim regarding the appropriateness of the penalty is moot (see e.g. Appeal of Kainz, 38 Ed Dept Rep 339, Decision No. 14,049).  However, petitioner also seeks expungement of the suspension from the student’s record, and this claim remains live (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

Regarding petitioner’s objections to the amendments of the charges against the student, the record indicates that the charges were amended twice, once at the first hearing date and once at the second hearing date.  On both occasions, petitioner and the student were given an opportunity to review the amended charges and, if desired, object to such amendments.  On both occasions, petitioner and the student consented to the amendments without objection.  Because petitioner did not object to the amendments to the charges at the hearing and the record contains no evidence that the issue was raised in an appeal to respondent, she cannot raise such objections in an appeal pursuant to Education Law §310 (see Appeal of S.Z. and K.Z., 52 Ed Dept Rep, Decision No. 16,384).

Regarding the student’s five-day suspension, petitioner argues that she was not provided with notice and an opportunity for an informal conference with the opportunity to confront complaining witnesses prior to the imposition of the suspension.  Therefore, she claims the student’s due process rights were violated and the suspension should be expunged.  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, petitioner was hand-delivered the notice of suspension on September 14, prior to the commencement of the suspension.  The September 14 letter informed petitioner that the student was being suspended for five days, from September 19 through September 25.  The letter further informed petitioner that she was entitled to an informal conference to discuss the suspension and an opportunity to “meet any complainants.”  I find that this letter, which was hand-delivered prior to the imposition of the suspension, was adequate to give petitioner notice and opportunity for an informal conference at which she could confront complaining witnesses.  Accordingly, I will not expunge the five-day principal’s suspension from September 19 through September 25 from the student’s record.

Regarding the continuation of the student’s short-term suspension during the superintendent’s hearing from September 26 through the date the decision was rendered on October 1, Education Law §3214(3)(c) mandates that a suspension may not continue beyond five school days unless and until the student has been afforded an opportunity for a hearing and a determination adverse to the interests of that student has been made (Ross v. Disare, 500 F Supp 928; MacDonald v. Tompkins, 67 Misc2d 338; Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419).

In this case, the student’s five-day suspension was to end on September 25.  However, petitioner requested an adjournment of the September 24 hearing date and the hearing resumed on September 27.  Under these circumstances, continuation of the student’s suspension through September 27 was not improper (Ross v. Disare, 500 FSupp 928).  However, the superintendent’s decision was not rendered until Monday, October 1, which was beyond the fifth day of the student’s suspension.  Because Education Law §3214(3)(c) requires that a student be readmitted to school unless a hearing is held and a decision rendered thereon within the initial five-day suspension period, the student’s suspension from September 28 through October 1 must be expunged (Appeal of D.H., 47 Ed Dept Rep 77, Decision No. 15,631; Appeal of McMahon, et al., 38 id. 22, Decision No. 13,976).

Petitioner also challenges the student’s long-term suspension imposed by the superintendent.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).  Here, I do not find that suspension for one quarter of the school year was excessive.  In an affidavit, the superintendent explained her reasoning in issuing the penalty; namely, that the student exercised “reckless disregard for authority” and engaged in “excessive violence.”  Given this reasoning, and based upon the record before me, including the student’s admission to the second amended charge, I find no basis upon which to expunge the student’s suspension from October 2, 2012 through April 12, 2013.[2]

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of the student between September 28, 2012 and October 1, 2012 be annulled and expunged from his record.

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