Appeal of C.K., on behalf of her son B.K., from action of the Board of Education of the Chittenango Central School District regarding student discipline.

Decision No. 17,520

(October 15, 2018)

Ferrara Fiorenza PC, attorneys for respondent, Catherine E.M. Muskin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Chittenango Central School District (“respondent”) to impose discipline upon her son (“B.K.” or “the student”).  The appeal must be sustained in part.

During the 2017-2018 school year, the student attended respondent’s high school.  On or about Friday, April 20, 2018, the high school principal, Nicholas Fersch (“principal Fersch”), was informed that a student had overheard B.K. utter a racial epithet.  According to the record, B.K. allegedly spoke the racial epithet two days earlier on April 18, 2018.  The student who overheard B.K.’s alleged remark indicated that it had offended him or her.  Principal Fersch proceeded to investigate.

Later in the day on April 20, 2018, principal Fersch interviewed and spoke with the student as well as four other students who allegedly overheard the remark.  The student informed the principal that he did not “recall saying” the epithet.

Petitioner arrived at the high school around 2:20 p.m. and met with principal Fersch and the athletic director.  Principal Fersch verbally informed petitioner that he had concluded that the student spoke the racial epithet and that he would be suspended for five days.

On or about April 20, 2018, Principal Fersch informed petitioner of the student’s suspension in writing.[1]  Principal Fersch indicates on appeal that this letter erroneously “omitted [mention of] [p]etitioner’s right to question complaining witnesses ....”

According to the record, respondent’s schools were closed for spring break between April 23 and 27, 2018.  The student’s short-term suspension commenced on April 30, 2018, the Monday following spring break.

On April 30, 2018, principal Fersch received a letter from petitioner, dated April 21, 2018, in which she requested to interview complaining witnesses.

On May 1, 2018, petitioner came to the high school and interviewed students who overheard the alleged remark.  Petitioner also met with principal Fersch, who informed her that due to deficiencies with the April 20, 2018 written notice, respondent would expunge the suspension served by the student on the previous day, April 30, 2018.[2]   Petitioner objected to respondent’s plan to expunge this day of suspension from the student’s record.

In a letter dated May 4, 2018, principal Fersch indicated to petitioner that he “ha[d] expunged the first day of [the student’s] suspension (April 30, 2018) as you had not yet had the opportunity to interview complaining witnesses.”  This appeal ensued.

Petitioner objects to the process by which respondent imposed, and informed her of, the student’s suspension.  Petitioner requests an investigation into respondent’s “unfair and inconsistent application” of its code of conduct, arguing that another student acted inappropriately and received a lesser suspension. Petitioner also requests an investigation into the improper expungement of one day of her son’s suspension and into respondent’s application of its code of conduct, which she alleges “does not follow proper application, dissemination and reporting of the Dignity for All Students Act Regulation.” Petitioner further identifies alleged errors concerning respondent’s handling of a prior disciplinary incident concerning her son from October 2017.  Petitioner requests that the short-term suspension be expunged[3] from the student’s record.  Petitioner further requests that the student be “offered protection ... until a full investigation of the district is complete” and other relief deemed just and proper, including “assistance in passing all classes/required [sic] by law.”

Respondent contends that it appropriately investigated the matter and imposed discipline in conformity with its code of conduct.  Respondent further states that it is willing to expunge the suspension served on April 30, 2018 from the student’s record but has not yet done so based upon petitioner’s objections.  Respondent also asserts that any claims concerning incidents occurring more than 30 days prior to service of the petition, including the October 2017 incident, must be dismissed as untimely.  Respondent further argues that petitioner’s request for academic assistance for the student is moot.  Finally, respondent asserts that it imposes discipline based upon a number of factors, including a student’s disciplinary history and the severity of his or her conduct; thus, petitioner’s arguments regarding discipline which may have been imposed on another student are not relevant in this appeal.

Initially, I must address two procedural issues.   Respondent objects to the fact that petitioner did not serve a copy of the reply in the manner required by the Commissioner’s regulations.  Section 275.14(a) of the Commissioner’s regulations requires that the reply be served in the manner set forth in §275.8(b); namely, “by United States mail, by private express delivery service or by personal service.”  Respondent asserts that the reply was not served by United States mail, a private delivery service or personal service.  In this regard, respondent alleges in its memorandum of law that the reply “appeared in the mailbox of the [c]onfidential [a]dministrative [a]ssistant to the [s]uperintendent in an envelope containing no postal or delivery information.”  However, respondent has submitted no evidence to support such allegation.  

Petitioner, however, has submitted an affidavit of service attesting that the reply was served upon “BOE, Chittenango Central School District c/o Michael Eiffe and Nicholas Fersch”[4] on June 4, 2018 by overnight express mail through the United States Postal Service at 1732 Fyler Road, Chittenango, New York.  I take administrative notice from respondent’s website that this is the address of the school district offices.  Such affidavit of service ordinarily constitutes prima facie evidence of proper service (Wells Fargo Bank, N.A. v. Chaplin, 65 AD3d 588; Dunn v. Pallett, 42 AD3d 807, appeal after remand 66 AD3d 1179; Bankers Trust Co. of California, N.A. v. Tsoukas, 303 AD2d 343; Appeal of Barrientos, 56 Ed Dept Rep, Decision No. 17,113; Appeal of a Student with a Disability, 54 id., Decision No. 16,780; Application of Kelty, 49 id. 12, Decision No. 15,946).  On this record, respondent has failed to provide evidence to rebut the allegation in the affidavit of service that service was made by United States mail as required by §275.8(b) of the Commissioner’s regulations.

However, §275.8(b) further requires that where a party is represented by counsel, as respondent is in this appeal, service must be made upon that party’s attorney.  Respondent contends that the reply was not served upon its attorney and petitioner’s affidavit of service confirms that the reply was mailed to the board of education, and not to respondent’s attorney.  Under these circumstances, where the reply was not addressed to or served upon counsel for respondent, I cannot conclude that petitioner properly served the reply.  Therefore, it cannot be considered (Appeal of Lazarek and Roy, 55 Ed Dept Rep, Decision No. 16,838; Appeal of P.J., 52 id., Decision No. 16,452; Appeal of Reis and Argus, 51 id., Decision No. 16,335).

Similarly, respondent argues that petitioner’s memorandum of law may not be considered because it was sent via mail to respondent instead of counsel for respondent.  Section 276.4 of the Commissioner’s regulations requires that a memorandum of law be served in the manner prescribed by 8 NYCRR §275.8(b).  Respondent is correct that 8 NYCRR §275.8(b) requires that subsequent pleadings and papers “shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney.”  Petitioner’s affidavit of service, which is essentially identical to the affidavit of service for the reply, indicates that the memorandum of law was served by mail upon the board of education and was not addressed to or served upon respondent’s attorney.  Therefore, like the reply, petitioner’s memorandum of law was not properly served and will not be considered (see Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335).

Next, petitioner’s request that I conduct an investigation into the district’s “unfair and inconsistent” application of its code of conduct and its noncompliance with the Dignity for All Students Act (“DASA”) must be dismissed.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).[5]

Additionally, petitioner’s request for “assistance in passing all classes/required [sic] by law” must be dismissed for failure to state a claim upon which relief may be granted.  Petitioner challenges the imposition of discipline upon her son and has not alleged any facts suggesting that the student requires academic assistance.[6]  Thus, petitioner’s request for relief in this regard must be denied.

Additionally, to the extent petitioner raises claims regarding a separate disciplinary incident which occurred in October 2017, this claim must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Here, petitioner served the instant petition on May 7, 2018, approximately seven months after this incident.  Petitioner does not set forth good cause in the petition for the delay (see 8 NYCRR §275.16).  Accordingly, petitioner’s claims regarding the October 2017 incident are hereby dismissed as untimely.

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).

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).

Here, the written notice did not, as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4), apprise petitioner of her right to an informal conference with the principal or her right to question complaining witnesses (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).  The record reflects that principal Fersch provided written notice of the student’s suspension on or about April 20, 2018.  Although neither party submitted a copy of this written notice, respondent admits that it “omitted [mention of] [p]etitioner’s right to question complaining witnesses ....”  Therefore, by respondent’s admission, the written notice was defective on its face.

Apparently realizing this error, principal Fersch sent another written notice to petitioner dated May 1, 2018.  This written notice does not apprise petitioner of her right to an informal conference with the principal or her right to question complaining witnesses and does not cure the defect in the original notice, though petitioner had been granted the opportunity to interview student witnesses and met with principal Fersch on May 1, 2018.  This written notice was provided on the second day of the student’s suspension and thus cannot meet the statutory requirement that the notice and opportunity for an informal conference take place prior to commencement of the suspension.  Respondent does not argue that the student’s continued presence in school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process or that the April 20, 2018 written notice contained such a finding.  In fact, principal Fersch’s May 4, 2018 letter offering to expunge the April 30, 2018 suspension from the student’s record because petitioner had not yet been afforded the opportunity to question complaining witnesses constitutes an admission that the student was unlawfully suspended prior to providing petitioner with the opportunity for informal conference at which to question complaining witnesses in violation of Education Law §3214(3)(b)(1).[7]

Moreover, on this record, I am not persuaded that a lawful informal conference was ever held.  There is no proof in the record that petitioner’s interview of student witnesses occurred in the presence of the principal at an informal conference, which is required under Education Law §3214(3)(b)(1).  In a May 2, 2018 letter to principal Fersch, petitioner provided her notes regarding student witnesses’ responses to her questions.  These notes do not indicate that principal Fersch was present during the questioning.  As noted above, the purpose of the written notice is to advise parents of their right to question complaining witnesses in the presence of the principal who suspended the students because the principal has authority to terminate or reduce the suspension.  In order to assess the credibility of the complaining witnesses, the principal needs to be present when they are questioned.  Therefore, as of May 1, 2018, an informal conference in full compliance with Education Law §3214(3)(b)(1) had not been held though petitioner had requested the opportunity to question witnesses, and the May 1, 2018 notice was also defective in that it did not apprise petitioner of her right to an informal conference at which she could question complaining witnesses in the presence of the principal.[8]

Respondent’s mailing of another written notice on May 4, 2018 did not cure any of the above deficiencies.  The May 4, 2018 letter merely indicates respondent’s intention to expunge the student’s suspension on “April 30, 2018” but does not inform petitioner of her right to question complaining witnesses.  Additionally, this written notice is dated May 4, 2018, the last day of the student’s suspension.  Thus, like the May 1, 2018 notice, the May 4, 2018 notice does not meet the statutory requirement that the notice and opportunity for an informal conference take place prior to commencement of the suspension.  Therefore, the record supports a finding that respondent failed to provide petitioner with written notice prior to commencement of the suspension which sufficiently apprised her of her right to an informal conference with the principal and her right to question complaining witnesses in the presence of the principal (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).

Even if the record had indicated that a proper informal conference had been held, it is well-settled that holding an informal conference with the principal does not excuse the requirement for written notification to students and their parents explaining their rights to the conference and the opportunity to question complaining witnesses prior to the suspension (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of B.B., 49 id. 253, Decision No. 16,017; Appeal of R.J. and D.J., 44 id. 191, Decision No. 15,145; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059).

Additionally, to the extent respondent contends that it satisfied its legal obligations by providing oral notice of the suspension, as noted 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).

Therefore, based upon the above deficiencies with the written notices, the student’s five-day suspension must be expunged from his record (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406). I remind respondent that, when imposing future short-term suspensions, it must fully comply with the requirements of Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4).

Given this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent annul and expunge from the student’s record all references to the student’s short-term suspension between April 30, 2018 and May 4, 2018.

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