Appeal of N.S., on behalf of her daughter T.S., from action of the Board of Education of the City School District of the City of Syracuse regarding student discipline.

Decision No. 17,382

(May 4, 2018)

Legal Services of Central New York, Inc., Susan M. Young, Esq., of counsel

Ferrara Fiorenza PC, attorneys for respondent, Heather M. Cole, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Syracuse (“respondent”) to impose discipline on her daughter T.S. (“the student”).  The appeal must be sustained in part.

On March 10, 2016, the student became involved in a physical confrontation with the vice principal of the Westside Academy at Blodgett (“Westside Academy”), a middle school within respondent’s district at which the student attended sixth grade.  As further discussed below, the parties disagree as to the nature and extent of this confrontation.

In a letter dated March 10, 2016, the principal of Westside Academy indicated that the student was suspended for five days, beginning March 11, 2016, for an
“[i]ntentional physical attack on school personnel.”[1]

In a letter dated March 14, 2016, respondent’s superintendent indicated that a long-term suspension hearing would be held on March 17, 2016 based upon the charge of “offensive touching, pushing, shoving, or physical intimidation of school personnel.”  Specifically, the superintendent indicated that: “On March 10, 2016, at approximately 1:20 p.m., [the student] punched an administrator repeatedly while she held onto her by her hair.” 

The hearing, presided over by a hearing officer, convened as scheduled.  In a written decision dated March 21, 2016, the superintendent adopted the hearing officer’s finding of guilt and recommendation of penalty; namely, suspension from Westside Academy from March 18, 2016 through the end of the 2015-2016 school year and attendance at “MSAP”[2] from March 22, 2016 through June 23, 2016.[3]  Petitioner appealed this decision to respondent.

In a letter dated June 9, 2016, the district clerk informed petitioner that respondent had considered and denied her appeal on June 8, 2016.  This appeal ensued.

Petitioner contends that the student’s short-term suspension must be expunged from her record because neither she nor the student received written notice of the suspension as required by Education Law §3214(3)(b)(1).  Petitioner further contends that respondent failed to prove, by competent and substantial evidence, that the student engaged in the charged conduct.  Petitioner seeks expungement of the student’s short-term and long-term suspensions from the student’s record.

Respondent denies petitioner’s contentions and asserts that it afforded the student and petitioner all the process they were due in connection with the short-term suspension.  Respondent further asserts that the district established the student’s guilt through competent and substantial evidence and that the penalty was proportionate to the offense and consistent with its code of conduct.

Turning first to petitioner’s claims regarding notice of the short-term suspension, 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).  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).

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).

On this record, I find that respondent did not, as required, deliver the written notice to petitioner prior to imposition of the student’s suspension.  The short-term suspension notice is dated March 10, 2016, the day before the student’s suspension began.  According to the record, on March 11, 2016, a social worker employed by the district attempted to hand-deliver the suspension notice to petitioner’s home at approximately 10:15 a.m.  The social worker further avers in an affidavit that no one appeared to be home and that she left the written notification in the mailbox.  However, even if the social worker had successfully hand-delivered the written notice to petitioner, it still would have occurred on the first day of the student’s suspension.  Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) require that the notice and opportunity for an informal conference be provided prior to the suspension unless the student’s presence in school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  Here, the written notice did not reflect any such finding.  Therefore, respondent violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) by failing to provide the written notice prior to the suspension (see e.g. Appeal of M.H., 57 Ed Dept Rep, Decision No. 17,330; Appeal of L.Z. and M.S., 56 id., Decision No. 17,034; Appeal of L.L., 51 id., Decision No. 16,334).

Additionally, to the extent respondent alleges that oral notification of the student’s suspension sufficed under the circumstances, this claim is without merit.  In an affidavit, the principal of Westside Academy avers that he orally informed petitioner that the student “would be suspended” on March 10, 2016, and subsequently informed her on March 11, 2016 that the duration of the suspension would be five days.  As stated above, oral communication with a parent regarding a suspension is not 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).  Accordingly, the student’s five-day suspension must be expunged from her record (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309).

Turning next to the student’s long-term suspension, the decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).

Here, I find that respondent met its burden of proving the student’s guilt through competent and substantial evidence.  At the hearing, respondent introduced into evidence a video recording of the March 10, 2016 incident.  In the recording, the student turns a corner and begins walking down a hallway.  The assistant principal, located on the other side of the hallway, approaches the student and attempts to block the student with her body.  The student repeatedly attempts to pass by the assistant principal, but the assistant principal precludes her from doing so.  As the student continues to try to force her way past, the assistant principal then pushes the student back against the wall to restrain her and a struggle ensues.  Although the lighting in the video recording is dark at this point and it is difficult to discern exactly what happens, the student is seen at one point pushing the assistant principal with both of her hands.  Shortly thereafter, the student throws punches at the assistant principal and the two grapple for a time until another staff member physically moves the student away from the assistant principal and to the ground.[4]

The assistant principal additionally testified at the hearing that, as the student approached her in the hallway on March 10, 2016, a teacher yelled to her that the student had left a classroom without permission.  The assistant principal then testified that she attempted to physically stop the student from walking further down the hallway.  The assistant principal further testified that, in response to her question as to where the student was going, the student told her “to get the F out of her way.”  The assistant principal then asked the student to calm down, and the student shoved her with two hands.  The assistant principal attempted to verbally deescalate the situation with the student, but to no avail.  The student and assistant principal then became, in the assistant principal’s words, “wrapped up.”  The assistant principal eventually released her hold on the student, but the student proceeded to curse the assistant principal, grab her hair and punch her.  Based on this evidence, I find that respondent met its burden of proving the student’s guilt by competent and substantial evidence.[5]

Petitioner’s contention that the hearing officer improperly determined the student’s guilt without allowing her to present evidence is not supported by the hearing record.  At the conclusion of the district’s case, a lay advocate who represented petitioner at the hearing invited both petitioner and the student to testify.  Petitioner agreed and testified, and the student explicitly declined the opportunity to testify.  Additionally, at the conclusion of the hearing, the hearing officer asked petitioner, the student’s father and the student whether they felt that she had “listened to what [they] had to say ....”  Each answered in the affirmative.  Therefore, on this record, petitioner has failed to show that she or the student were precluded from offering evidence or testimony at the hearing, or that the hearing officer erred by determining the student’s guilt based on the evidence presented by the district. 

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s short-term suspension of the student for five days between March 11, 2016 and March 17, 2016 be annulled and expunged from her record.

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