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Decision No. 17,610

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Cold Spring Harbor Central School District regarding student discipline.

Decision No. 17,610

(March 27, 2019)

Law Offices of Douglas A. Spencer, PLLC, attorneys for petitioner, Douglas A. Spencer, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Cold Spring Harbor Central School District (“respondent”) to impose discipline upon their son (“the student”).  The appeal must be sustained in part.

At all times relevant to this appeal, the student attended respondent’s high school.  On September 2, 2018, the student and several friends participated in a paintball game off-campus to celebrate the student’s birthday.  On that date, the student took a photo of another student in respondent’s district in front of a rack of mounted paintball guns.  The student added the caption: “Don’t come to school on Tuesday.”  The student uploaded the photograph and caption using the social media application Snapchat (the “posting”).

Later on September 2, 2018, a parent of a high school student in respondent’s district emailed the high school principal (“principal”) and indicated that his or her child had viewed the posting and found it “disturbing.”  The principal contacted the superintendent who, in turn, contacted the Suffolk County Police Department. 

On September 3, 2018, a police officer visited petitioners’ home to discuss the posting with the student.  The police officer spoke with the student and determined that the posting did not present a threat to respondent’s district.  The police officer informed the student that his conduct was inappropriate and cautioned him against engaging in similar activity in the future.

Also on September 3, 2018, the superintendent sent a letter to district parents informing them that a threatening posting had been posted on Snapchat, that the Suffolk County Police Department had investigated, and that the police had “determined that the threat was made as a joke and posed no danger to our students or staff.”  The superintendent further indicated that the district took all threats “extremely seriously,” and that he had ordered “a security sweep of Cold Spring Harbor Jr/Sr High” as a “precautionary measure.”

According to the record, the principal contacted petitioners by telephone on September 3, 2018.  The parties dispute whether the principal informed petitioners that he had imposed, or was considering imposing, a suspension of the student.

Petitioners and the student met with the principal on the morning of September 4, 2018 at 10:00 a.m.  It appears from the record that respondent did not allow the student to attend school prior to that time.  Later in the day on September 4, 2018, respondent delivered a letter to petitioners at their home which indicated that the student was suspended for five days – from September 4 through September 12, 2018. 

In a letter dated September 5, 2018, the superintendent informed petitioners that a long-term suspension hearing would be held on September 12, 2018 concerning the student’s conduct on September 2, 2018.  The letter alleged that the student “posted a message on a social media account which stated, ‘Don’t come to school on Tuesday,’ superimposed on a photograph of another student who was standing in front of objects that appeared to be weapons.”  The hearing, presided over by a hearing officer, convened as scheduled.

In a written report dated September 12, 2018, the hearing officer recommended that the student be found guilty of the charged conduct and that he be suspended through September 30, 2018.  In a written decision dated September 12, 2018, the superintendent adopted the hearing officer’s recommendations regarding guilt and penalty.  Petitioners appealed the superintendent’s decision to respondent.  In a letter dated October 10, 2018, respondent indicated that it denied petitioners’ appeal on October 9, 2018.  This appeal ensued.

Petitioners challenge respondent’s short-term and long-term suspensions of the student.  Initially, with respect to both suspensions, petitioners argue that the student’s conduct occurred off-campus and that there was no nexus between the conduct and school activities.  Regarding the short-term suspension, petitioners argue that respondent failed to provide timely and sufficient written notice of such suspension.  With respect to the long-term suspension, petitioners argue that respondent: (1) failed to prove, through competent and substantial evidence, that the student violated the district’s code of conduct; (2) relied upon erroneous factual findings by the hearing officer which were not supported by the record; and (3) that the student’s suspension was excessive.  Petitioners request expungement of the short-term and long-term suspensions from the student’s record.

Respondent denies petitioners’ contentions and asserts that the short-term and long-term suspensions were lawful and that its determinations concerning the student’s guilt and penalty were neither arbitrary nor capricious.

First, I must address a procedural matter.  Respondent objects to petitioners’ reply on the ground that it introduces newly-raised assertions.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.[1]  This includes an affidavit submitted by one of the petitioners, the student’s father, which seeks to buttress allegations in the petition and makes assertions that should have been made in the petition.

Turning to petitioners’ challenge to 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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).  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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The record indicates that that the principal met with the student’s parents at 10:00 a.m. on September 4, 2018 and that written notice of their right to an informal conference and their right to question complaining witnesses was personally delivered to them by district security staff sometime after that meeting.  The written notice states that the student’s suspension “will begin immediately.”  Respondent admits in its answer that the student did not attend class on September 4, 2018 and that the student’s suspension commenced on that day.  The parties dispute whether the written notice was provided prior to commencement of the suspension.  Petitioners argue that the principal told them in a telephone conversation on September 3, 2018 and again at the September 4 meeting that he had decided to suspend the student, and that the written notice was not provided until after the suspension had commenced.  The principal testified at the hearing that “the official suspension did not happen until after we met with [the student] and his parents that morning.” 

Although the record is not entirely clear on this point, I agree with petitioners that the principal improperly suspended the student prior to delivery of the written notice and an opportunity for an informal conference with the principal.  The parties agree that the student did not attend school on September 4, 2018 prior to the informal conference.  This is consistent with petitioners’ assertion that the principal suspended the student on September 3, 2018 and informed petitioners that the student “was not permitted to go to school on the 4th as he was suspended.”  Respondent, by contrast, has not explained why the student did not attend school prior to the informal conference on September 4, 2018; tellingly, respondent does not assert that the student was entitled to attend school prior to the informal conference.[2]  Moreover, although the principal testified at the hearing that the student’s “official” suspension began after the informal conference, respondent has not explained exactly when the student’s “official” suspension began, other than to state that it was sometime on September 4, 2018.[3]  Thus, the record supports a finding that the student was improperly suspended prior to petitioners’ receipt of the written notice and opportunity for an informal conference (cf. Appeal of N.F., 58 Ed Dept Rep, Decision No. 17,598). 

Respondent nevertheless argues on appeal that it was permissible to provide the written notice and opportunity for an informal conference after the suspension commenced because the written notice included a finding by the principal that the student’s continued presence was a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  While I agree with respondent that a student who threatens school safety may generally constitute a continuing danger to persons or property or an ongoing threat of disruption to the academic process, the facts of this case do not support the principal’s finding of a continuing danger or ongoing threat of disruption.   As noted above, the Suffolk County Police Department investigated the posting on September 3, 2018 and determined that the threat was intended as a joke and that the student did not present a threat to respondent’s district.  The police department informed the superintendent of this finding on September 3, 2018, and the superintendent relayed this finding to the principal on the same day.  The superintendent also distributed a letter dated September 3, 2018 to district parents stating that “the Suffolk County Police Department determined that the threat was made as a joke and posed no danger to our students or staff.”  Moreover, the short-term suspension notice indicated that the student would “be permitted on school property on Saturday, September 8 to take the ACT exam if he so chooses.”  All of this evidence belies respondent’s assertion that the student constituted a continuing danger to persons or property or an ongoing threat of disruption to the academic process when the principal imposed the short-term suspension.

At the long-term suspension hearing, the principal testified that he determined that the student’s presence would pose an ongoing threat of “disruption to the academic process” because “students were aware of the photo ... and that if [the student] was in school at the beginning of the school year ... that could cause a disruption to the academic process of the school.”  I do not find that this explanation excuses the principal’s failure to provide written notice of the student’s rights and an opportunity for an informal conference prior to imposition of the suspension.  Essentially, respondent argues that the student violated respondent’s code of conduct and speculates that his presence may have caused additional disruption or concern given such violation.  On this record, where the superintendent had already notified the community that the student’s threat did not pose a danger to students or staff, I find the principal’s prediction of disruption based on the student’s presence in school too speculative to justify commencing the student’s suspension prior to affording him and his parents an opportunity for an informal conference.  

Therefore, I find on this record that the principal impermissibly imposed a suspension prior to delivery of the written notice and affording petitioners with an opportunity for an informal conference as required by Education Law §3214(3)(b)(1).[4]  Accordingly, the short-term suspension must be expunged on that basis (see e.g. Appeal of T.H., 56 Ed Dept Rep, Decision No. 17,049; Appeal of G.B., 50 id., Decision No. 16,218).

With respect to both the short-term and long-term suspensions, petitioners argue that the student could not be disciplined for the posting because he uploaded the posting outside of school grounds and during non-school hours.  Prior Commissioner’s decisions have upheld the suspension of students for off-campus conduct (Appeals of A.F. and T.P., 56 Ed Dept Rep, Decision No. 16,997; Appeal of W.T., 46 id. 363, Decision No. 15,534).  Case law has also recognized that students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety or pupils within the educational system or adversely affect the educative process (Matter of Coghlan v. Bd. of Educ. of Liverpool Cent. School Dist., 262 AD2d 949, citing Pollnow v. Glennon, 594 FSupp 220, aff’d 757 F.2d 496; Appeals of A.F. and T.P., 56 Ed Dept Rep, Decision No. 16,997; Appeal of W.T., 46 id. 363, Decision No. 15,534).

Because the student’s conduct consisted only of speech, I must also consider whether the student’s suspension violated his rights under the First Amendment.  It is well-settled that a school district may discipline a student for speech where there are facts that might reasonably have led school officials to forecast substantial disruption or material interference with school activities (Tinker v. Des Moines Independent Community School District, et al., 393 US 503; Cuff v. Valley Central School District, 677 F3d 109; Wisniewski v. Board of Education of Weedsport Central School Dist., 494 F3d 34).  As the Second Circuit stated in Cuff v. Valley Central School District (677 F3d 109):

This test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable.  Rather, the question is “whether school officials might reasonably portend disruption from the student expression at issue.”  (quoting Doninger v. Niehoff, 527 F3d 41).

Moreover, the Second Circuit has ruled that the fact that the speech occurred off school property does not insulate the student from discipline where the speech poses a reasonably foreseeable risk that it would come to the attention of school authorities and materially and substantially disrupt the work and discipline of the school (Wisniewski v. Board of Education of Weedsport Central School District, 494 F3d 34; see also Doninger v. Niehoff, 642 F3d 334).  Thus, the Second Circuit in Wisniewski upheld the constitutionality of a school district’s discipline of a student who used instant messaging from a home computer to transmit to other students an icon which made a threat to kill a teacher.  Taking into account “[t]he potentially threatening content of the icon and the extensive distribution of it, which encompassed 15 recipients,” the Second Circuit held that it was reasonably foreseeable that the instant messaging icon would come to the attention of school authorities and the teacher and that there was no doubt that it would foreseeably create a risk of substantial disruption within the school environment (Wisniewski v. Board of Education of Weedsport Central School District, 494 F3d 34 [distribution encompassing 15 recipients found to be extensive]).

Here, I agree with respondent that it was reasonably foreseeable that the student’s posting would come to the attention of school officials and that school officials could reasonably foresee that it would cause substantial disruption or material interference with the work and discipline of the school.  According to the student, the posting took the form of a Snapchat “story,” a feature which, according to the student, permits “everyone who has you as a friend ... to see it.”  The student further explained that such stories are “replayable [sic] for an infinite number of times,” although the posting “deletes itself within 24 hours.”  The student estimated that approximately 30 students viewed the posting and that approximately 20 of these students attended school in respondent’s district.[5]  The student further testified that approximately five of the students who viewed the post had not attended the student’s birthday party and, thus, were not aware of the context in which the picture was taken.  Based upon this evidence, I find that approximately 20 district students were provided access to, and actually viewed, the student’s posting.  As in Wisniewski, the student’s posting clearly threatened violence in the school and the distribution of the posting was extensive (Wisniewski v. Board of Education of Weedsport Central School District, 494 F3d 34).

Thus, I find that it was reasonably foreseeable that the student’s posting would come to the attention of school officials and would foreseeably cause substantial disruption or material interference with the operation of the school (see Appeal of M.B. and A.W., 57 Ed Dept Rep, Decision No. 17,378 [holding that it was reasonably foreseeable that a text message sent to three students, which contained a threat to kill, would be shared with other students at the school]).  Contrary to petitioners’ arguments, I do not agree that respondent is precluded from disciplining the student because, prior to the suspension, the police conducted an investigation and a security sweep of the school and concluded that the posting was intended as a joke and the student was not a threat to the school.  A threatening posting that triggers an investigation by school authorities and the police, a security sweep of the school, and the issuance of an explanatory message from the superintendent to the community clearly involves a material interference with the operation of the school.  I further find that it was reasonably foreseeable that the student’s posting, which included an image of what appeared to be weapons and made a veiled threat of violence at the school, would come to the attention of school officials and would foreseeably cause substantial disruption and material interference with the operation of the school.  The fact that the threat later proved not to be real and that the student did not intend to carry it out does not preclude discipline of the student for the posting (see Cuff v. Valley Central School District, 677 F3d 109).

Petitioners further allege that respondent failed to prove a violation of its code of conduct through competent and substantial evidence.  In this respect, petitioners argue that the notice of charges did not identify the specific portion of respondent’s code of conduct which the student violated.  However, there is no requirement that a disciplinary notice cite a specific provision of respondent’s code (Appeal of S.Z. and K.Z., 52 Ed Dept Rep, Decision No. 16,384; Appeal of L.L., 45 id. 217, Decision No. 15,306).  The charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing” (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895). 

The notice of charges here stated, in relevant part:

[O]n or about Sunday, September 2, 2018, respondent student ... posted a message on a social media account which stated, “Don’t come to school on Tuesday,” superimposed on a photograph of another student who was standing in front of objects that appeared to be weapons.  Such conduct is in violation of the Cold Spring Harbor Central School District Code of Conduct.

I find that this language provided sufficient information for petitioners and the student to prepare an effective defense.  Thus, to the extent petitioners challenge the notice of charges as insufficient to apprise them of the conduct with which the student was charged, their argument is without merit.

Petitioners also appear to argue that respondent did not identify which portions of its code of conduct that the student’s activity violated in connection with the long-term suspension hearing.  After the parties presented evidence and testimony concerning the student’s guilt at the long-term suspension hearing, the hearing officer found on the record that the student “engaged in conduct that was insubordinate, disorderly, violent, disruptive and a danger to the safety, morals, health and welfare of others.”  The hearing officer included a similar finding in his written recommendation to the superintendent, and the superintendent adopted, and reproduced, such finding in his written decision.  Respondent’s code of conduct indicates that students may be subject to discipline for insubordinate, disorderly, violent and disruptive conduct, as well as “conduct that endangers the safety, morals, health or welfare of others.”  Therefore, while the specific provisions of the code of conduct which the student was charged with violating were not articulated in the notice of charges or at the outset of the hearing, I nevertheless find that respondent sufficiently identified the portion of its code of conduct which the student was alleged to have violated at the hearing.

I further find that respondent proved the student’s guilt as to this charge through competent and substantial evidence.  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, the student admits that he engaged in the conduct underlying the charge; namely, that he created and uploaded the posting that is the subject of this appeal.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).  While petitioners suggest on appeal that the district was also required to prove, by competent and substantial evidence, that “the post constituted a threat,” petitioners cite no law, case, or policy which supports this proposition.  The district was only required to prove the charges against the student by competent and substantial evidence, which it did based upon the student’s admission to the conduct underlying the charges.

Petitioners further argue that the student could not be disciplined for his conduct because he did not intend to threaten anyone and did not actually “endanger []” the “safety, morals, health or welfare of others.”  However, whether a student intended his or her conduct as a joke or whether he or she intended to carry out the threat is irrelevant to a finding of guilt as to charges concerning inappropriate threats (see Saad-El-Din v. Steiner, 101 AD3d 73; cf. Cuff v. Valley Central School District, 677 F3d 109 [whether student intended a threat as a joke or never intended to carry it out is irrelevant to a determination of whether a resulting suspension violated his constitutional right to free speech]; see also Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581; Appeal of Joseph F., 39 id. 242, Decision No. 14,226; Appeal of Leahy, 39 id. 375, Decision No. 14,264).[6]  Therefore, I reject petitioners’ suggestion that the district was required to prove that others were actually endangered by the student’s conduct.

Next, petitioners identify 13 statements contained in the hearing officer’s findings of fact with which they disagree.  I have reviewed petitioners’ arguments and do not find that any of the alleged errors, individually or cumulatively, negate the student’s guilt. 

Petitioners’ challenges to the hearing officer’s findings can be grouped into three categories.  First, petitioners challenge findings concerning issues which I have addressed above; i.e., petitioners’ allegations that findings 7, 10, 14, and 19 were erroneous because there is no evidence that the posting was “threatening,” petitioners’ allegations that findings 15 and 16 were inaccurate because the student had an innocent intent in uploading the posting and that the “vast majority” of recipients of the posting were at the party or were not students of respondent’s district, and petitioners’ challenge to finding 20 on the basis that there is no evidence that the student violated respondent’s code of conduct.  I have addressed these arguments above and, for the reasons articulated above, find them to be without merit.

Second are alleged factual errors which, even if true, are not relevant to the issues of guilt and penalty; i.e., petitioners’ challenge that finding 6 concerns irrelevant or extraneous information learned by the principal during his investigation; petitioners’ argument concerning finding 8 that the student’s Snapchat handle was innocuous; and petitioners’ argument with respect to finding 11 that the assistant superintendent for business, not the superintendent, accompanied police in their sweep of the school on September 3, 2018.  Because these issues are not relevant to the student’s guilt or the penalty imposed, it is not necessary to address them on appeal.

Third are challenges to the hearing officer’s characterization of the items depicted in the posting as “weapons” and “guns” in findings 1 and 4; petitioners argue that these items, in fact, were “paintball accessories and equipment.”  With respect to the characterization of the paintball guns as “weapons” in finding 1, petitioners have taken the hearing officer’s statement out of context; the hearing officer referred to the paintball guns as “objects that appeared to be weapons” (emphasis added).  With respect to the hearing officer’s characterization of the paintball guns as “guns” in finding 4, petitioners have not explained why it was inaccurate or prejudicial to describe the depicted objects as guns.  Indeed, both parties referred to the objects as paintball guns during the hearing, and petitioners use this terminology throughout the petition (e.g., the student “photographed one of his oldest friends ... standing in front of a sales-wall displaying several paintball guns ...” and the student “had no reason to believe that anyone seeing the text ... or the paintball guns [] would be concerned ....”).  Therefore, I find petitioners’ argument without merit.

Petitioners also allege that the student’s suspension from September 12 through September 30, 2018 was excessive.  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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909). 

I find that respondent acted well within its discretion in upholding a suspension for 18 days based upon a posting which could be construed to threaten gun violence.  Although the student has a previously unblemished record, this does not necessarily mean that he is entitled to receive a lesser penalty than would otherwise be imposed for a particular offense (Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159; Appeal of Lutes, 25 id. 396, Decision No. 11,624).  Here, regardless of whether the student intended the conduct as a joke, the extremely serious subject matter of the student’s comments, particularly in this climate in which our nation is beset by an epidemic of school shootings, cannot be tolerated (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515; Appeal of P.K., 41 id. 421, Decision No. 14,733).  Violence and threats of violence, even if intended as jokes, have no place in our schools.

Finally, I am compelled to note on respondent’s procedure for imposing short-term suspensions.  At the long-term suspension hearing, the principal suggested that the district employs “boilerplate” language in its short-term suspension notices indicating that students constitute a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  To the extent this represents respondent’s practice, this is improper.  A determination of whether a student constitutes a continuing danger or ongoing threat of disruption must be made on a case-by-case basis.  As indicated above, a continuing danger or ongoing threat of disruption is an exception to the general rule that students must receive written notice apprising them of their rights to an informal conference with the principal and to question complaining witnesses and an opportunity for an informal conference prior to commencement of the suspension (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).  Assuming that the principal’s testimony accurately reflected district practice, I admonish respondent to cease including such language as a matter of course and, instead, make such determinations on a case-by-case basis.

I have considered the parties’ remaining contentions and find them to be without merit.

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 September 4, 2018 and September 12, 2018.

END OF FILE

 

[1] In this regard, pursuant to 8 NYCRR §276.5, I have accepted petitioners’ sur-reply insofar as it responds to respondent’s objections to the reply.  However, I have not considered the affidavits attached to the sur-reply, which seek to respond to respondent’s objections to contentions that were not properly made in the reply.

 

[2] I further note that respondent has not provided an affidavit from the principal.  Instead, respondent relies upon the principal’s testimony at the long-term suspension hearing.

 

[3] Similarly, in its answer, respondent asserts that the “final decision” to suspend the student “was not made until after the September 4, 2018” meeting.

 

[4] To the extent respondent argues that this failure was mitigated by the meeting among petitioners, the student, and the principal on September 4, 2018 at 10:00 a.m., prior decisions of the Commissioner have consistently held that holding an informal conference with the principal does not excuse the requirement for prior 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). 

 

[5] After offering this estimate, the student qualified it by indicating that he felt the estimate of 20 was “a little high.”

 

[6] With respect to certain violent threats, I note that the Penal Law criminalizes terroristic threats irrespective of whether a defendant “ha[d] the intent or capability of committing the specified offense ....” (Penal Law §490.20[2]).