Appeal of M.S., on behalf of D.S., from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding student discipline.

Decision No. 17,771

(October 10, 2019)

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

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel.

BERLIN., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Bayport-Blue Point Union Free School District (“respondent”) to suspend her son (“the student” or “D.S.”) from school.  The appeal must be sustained.

At all times relevant to this appeal, the student attended respondent’s middle school.  On the evening of February 26, 2019, the middle school principal (“the principal”) learned that the Suffolk County Police Department (“SCPD”) was investigating whether D.S. had made a comment, in a conversation with other students on X-Box Live,[1] that he planned to bring a gun to a fight on school property.  According to the record, the principal contacted petitioner by telephone later that evening, on the night of February 26, 2019, and informed her of the investigation.  The parties dispute whether the principal informed petitioner during this conversation that he had imposed, or was considering imposing, a suspension of the student.

The record indicates that D.S. did not attend school on February 27.  On the morning of February 27, 2019, the principal was told by the SCPD that D.S. admitted making the comment that he was going to bring a gun on school property.  By letter dated February 27, 2019, the principal suspended the student for five days, beginning on February 27.  Petitioner contends she received this notice “at approximately 3 p.m.,” while respondent indicates that the notice was hand-delivered sometime in the afternoon.  The notice informed petitioner that she could schedule an immediate informal conference with the principal prior to the implementation of the suspension, during which she could ask questions of the complaining witnesses.  Should she desire such a meeting, the principal advised petitioner to call the principal’s office without delay so that they “might schedule a meeting prior to the start of school tomorrow.”  The notice did not indicate that the student’s presence in school posed a continuing danger to persons or property or an ongoing threat to the academic process.

Petitioner appealed the suspension to the superintendent.  By letter dated March 4, 2019, the superintendent upheld the principal’s suspension.  Petitioner appealed the suspension to respondent, which, by letter dated March 27, 2019, upheld the suspension.  This appeal ensued.

Petitioner asserts that D.S.’s five-day suspension is procedurally defective because respondent did not provide timely written notice of the suspension and petitioner’s right to request an informal conference at which she could question complaining witnesses.  For relief, petitioner requests expungement of the short-term suspension from D.S.’s record.

Respondent argues that it provided petitioner with legally sufficient notice of the student’s suspension.  Alternatively, should its provision of notice be determined procedurally defective, respondent asks that only the first day of the student’s suspension be expunged.  Finally, respondent argues that the appeal should be dismissed as moot because the student has already served the suspension.

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 2019.  To the extent that his suspension has been served, any claim regarding the appropriateness of the penalty is moot (see e.g. Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of Kainz, 38 id. 339, Decision No. 14,049).  However, petitioner also seeks expungement of the short-term suspension from the student’s record, and this claim remains live (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652; Appeal of D.O., 53 id., Decision No. 16,543).

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 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).  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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

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).

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]).

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).

In the instant appeal, the parties do not dispute that petitioner received a telephone call from the principal about the incident on the evening of February 26, 2019 and written notice of D.S.’s five-day suspension on February 27, 2019 at some point in the afternoon; however, petitioner contends that she did not receive this written notice prior to the student’s suspension, which, the notice stated, began on February 27.  Petitioner further alleges that she was not apprised in either the February 26 telephone call or in the written notice that her son’s presence in the school would pose a continuing danger or an ongoing threat of disruption.

Petitioner claims that the principal informed her on February 26 that D.S. had been suspended, averring that D.S. “did not report to school [on February 27] per [the principal’s] instruction to [petitioner] of a day earlier.”  Respondent denies this allegation, instead contending that the principal merely advised petitioner on February 26 that “it might be beneficial to keep D.S. home from school on February 27,” since the police were investigating D.S.’s alleged threatening comment.  In an affidavit submitted by respondent, the principal avers that although D.S. did not attend school on February 27, “at that point, he had not been suspended.”  The principal claims he did not make the decision to suspend D.S. until after he was notified by police on the morning of February 27 that D.S. had admitted making the comment about bringing a gun onto school property.  The principal contends he told petitioner in a February 27 late morning telephone conversation that her son “was potentially facing a five-day suspension.”  It was only “[l]ater that day” the principal contends he informed petitioner that D.S. was going to be suspended.  In this conversation, the principal avers he told petitioner he would count February 27 as the first day of D.S.’s suspension “since D.S. was absent from school” that day.

Although the record is not entirely clear on this point, I agree with petitioner that the principal excluded the student from school on February 27.  Specifically, while the principal attempted to mitigate the exclusion of D.S. retroactively by starting D.S.’s five-day suspension on February 27, this would mean that the student was, in fact, suspended on this date even though the principal has submitted an affidavit to the contrary (Appeal of N.F., 58 Ed Dept Rep, Decision No. 17,598).  Therefore, the record supports a finding that the student was improperly suspended prior to petitioner’s receipt of the written notice on February 27 informing her of the opportunity for an informal conference (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,610; Appeal of N.F., 58 id., Decision No. 17,598).

Respondent nevertheless argues that its notice was proper because the student’s admitted conduct was “dangerous and interfered with the operations” of the school and the district provided petitioner with written notice “within 24 hours of the incident.”  Education Law §3214[3][b][1] requires that notice and opportunity for an informal conference take place prior to the suspension of the pupil, except when 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]).  Here, the written notice of D.S.’s five-day suspension does not explicitly indicate that the student's presence in the school would pose a continuing danger or an ongoing threat of disruption (see e.g. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,503; Appeal of a Student with a Disability, 56 id., Decision No. 17,111; Appeal of L.Z. and M.S., 56 id., Decision No. 17,034).  Respondent’s failure to set forth this determination in the notice of suspension precludes it from relying upon such rationale on appeal (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,111; Appeal of T.T. and K.T., 52 id., Decision No. 16,386; Appeal of G.B. and B.B., 52 id., Decision. No. 16,383).

I must also reject respondent’s argument that only the first day of D.S.’s suspension be expunged should its written notice to petitioner be found untimely.  Respondent argues that petitioner was provided with sufficient due process because the written notice provided on February 27 fully informed her of her right to request an informal conference and petitioner did, in fact, meet with the principal in an informal conference on the morning of February 28, on the second day of suspension.  Respondent thus argues that “[p]etitioner was afforded her minimum due process afforded by law.”  Further, respondent contends there is no dispute that the student made the threatening comment, arguing that even the petitioner admitted her son made the comment; that the basis for the suspension has not been challenged; and that the conduct committed by the student constituted dangerous conduct in violation of the School’s code of conduct.  Contrary to respondent’s assertions, however, holding the informal conference after the student’s suspension had already begun defeats the purpose of the written notice requirement, which is to apprise parents of their rights to question complaining witnesses and have an informal conference with the principal.  These requirements, in turn, afford 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).  The Commissioner has consistently expunged the entirety of students’ short-term suspensions where a district failed to provide sufficient written notice in conformity with Education Law §3214 (see e.g. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,610; Appeal of T.H., 56 id., Decision No. 17,049).  Respondent cites no authority to the contrary, and I find no reason to depart from this precedent.

Therefore, I find on this record that the principal impermissibly imposed a suspension prior to delivery of the written notice and affording petitioner with an opportunity for an informal conference, as is required by Education Law §3214(3)(b)(1).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent annul and expunge from the student’s record any reference to the short-term suspension, February 27 through March 5, 2019, at issue in this appeal.

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