Appeal of T.F., on behalf of I.F., from action of the Board of Education of the Hoosick Falls Central School District, regarding student discipline.

Decision No. 17,916

(September 4, 2020)

Tabner, Ryan & Keniry, LLP, attorneys for respondent, Tracy L. Bullett, Esq., of counsel

Rosa., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Hoosick Falls Central School District to suspend her son (“I.F.” or “the student”).  The appeal must be sustained.

During the 2018-2019 school year, I.F. was a senior at respondent’s high school.  According to the record, the high school assistant principal received an email from a teacher on December 5, 2018; the email indicated that a number of female students had complained about comments made by I.F. and “were ... considering filing” a complaint under the Dignity for All Students Act (“DASA”).  According to the teacher, the students requested a meeting with the assistant principal before pursuing a formal DASA complaint.  That same afternoon, the assistant principal met with the teacher and a group of female students who had expressed interest in filing a complaint against I.F. for making inappropriate comments to them.

On December 6, 2018, one of the students involved in the December 5 meeting (“the complainant”) entered the high school crying and was escorted to the principal’s office.  The complainant stated, inter alia, that she had become upset when I.F. and one of his friends had engaged in a “very sarcastic exchange” in front of her, which indicated that he had heard about the December 5 meeting concerning the complaints against him.  The complainant also reported to the principal and superintendent that I.F. had previously made insulting comments toward her.

At approximately 7:35 a.m., the principal called I.F. to his office and spoke to him about the allegations of harassment.  Petitioner was separately meeting with the assistant principal around the same time to discuss the allegations against I.F. voiced at the December 5 meeting.  As further discussed herein, the principal orally informed the student that morning that he would be suspended for five days.

By letter dated December 6, 2018, the principal indicated that he “intend[ed] to suspend” I.F. for five days, commencing on December 6 and ending on December 12, 2018, for a “Pattern of Inappropriate Conduct and Comments.”  The suspension notice also described a specific incident that had taken place in the lunch room.

In a separate letter, also dated December 6, 2018, the superintendent indicated that the district would convene a long-term suspension hearing on December 12, 2018.  This letter identified the charges against the student were for “Inappropriate Conduct, pattern of inappropriate conduct and comments.”[1]

On January 2, 2019, respondent convened the hearing, which was presided over by the superintendent.  By letter dated January 3, 2019, the superintendent found the student guilty of the charges of:  (1) inappropriate conduct; (2) pattern of inappropriate conduct and comments; and (3) “disorderly conduct.”  The superintendent suspended the student through the end of the 2018-2019 school year.  The superintendent stated that I.F. would not be provided with an alternative education program because he was not of compulsory school age.  Petitioner appealed the superintendent’s decision to respondent, which, by letter dated March 4, 2019, upheld the superintendent’s decision.  This appeal ensued.[2]

Petitioner contends that her son was “wrongfully determined” to be guilty of the charges against him after being “targeted by two girls who, being on the basketball team that was coached by the superintendent, were able to ‘get his ear’ and influence the series of events that followed.”  Additionally, petitioner argues that her son’s “due process rights were violated” because, among other things, respondent did not provide her or her son with information on the complaints about I.F. prior to the hearing, did not allow her son to present a defense or call witnesses, and improperly admitted evidence into the hearing record that did not relate to the charges.  Petitioner also contends that the student’s suspension is excessive.  Petitioner requests that the student’s suspension be expunged from his record.

Respondent argues that the petition should be dismissed for lack of standing and as moot.  Additionally, respondent maintains that petitioner has not met her burden of proof demonstrating that respondent’s suspension of her son was arbitrary or capricious.  Respondent also contends that its suspension of I.F. was not excessive due to the “severity” and “ongoing nature” of the student’s conduct.

First, I must address the procedural issues. Respondent’s argument that petitioner lacks standing is without merit.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Respondent argues that petitioner lacks standing because I.F., at age 18, is the “proper and only party that has standing to bring this appeal.”  Generally, the named petitioner in an appeal must be a person in parental relationship to the student unless the student is over the age of 18, in which case he or she may bring his or her own appeal (Appeal of R.T. and E.T., 57 Ed Dept Rep, Decision No. 17,340; Appeal of R.E., 56 id., Decision No. 17,003).  Although a person over the age of 18 is legally competent to maintain an appeal, a parent may petition on behalf of his or her school-aged child (Appeal of White, 52 Ed Dept Rep, Decision No. 16,442; Appeal of John W. and Lorraine W., 37 id. 713, Decision No. 13,965; Appeal of Strada, 34 id. 629, Decision No. 13,434; Appeal of Farber, 33 id. 424, Decision No. 13,100).  Here, petitioner is aggrieved in the sense that she seeks a decision expunging a suspension from the student’s educational record, among other things (see Appeal of Debbie L., 39 Ed Dept Rep 505, Decision No. 14,294).  Accordingly, I find that petitioner has standing to bring this appeal and, thus, decline to dismiss for lack of standing.

Additionally, respondent contends that I.F.’s subsequent attendance at another school renders the appeal moot.  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Whether or not the instant appeal is moot depends upon whether respondent maintains any record of the student’s disciplinary suspension.  In a letter dated July 23, 2019, my Office of Counsel attempted to ascertain this information pursuant to section 276.5 of the Commissioner’s regulations.  In this letter, my Office of Counsel requested “an affirmation or affidavit indicating whether the respondent maintains any record of the disciplinary incidents giving rise to this appeal in the student’s educational record.”  In response, counsel for respondent submitted an affirmation in which she included a copy of the hearing record and stated that “this information has been previously provided.”  The original request, however, sought information as to whether respondent maintained information about the suspension at issue in this case “in the student’s educational record.”  Given respondent’s unclear response, I am compelled to conclude that respondent continues to maintain a record of the student’s suspensions.  As a result, petitioner’s challenge to these suspensions 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; Appeal of L.L., 51 id., Decision No. 16,334; compare Appeal of Studley, 38 id. 258, Decision No. 14,028 [appeal moot where student’s graduation rendered it impossible to reinstate student to the high school golf team]).

Turning to the merits 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 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).

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).

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).

Here, the record reflects that the high school principal verbally suspended the student prior to providing him with written notice apprising him of his rights to an informal conference and to question complaining witnesses.  At the long-term suspension hearing, the principal testified that, on the morning of December 6, 2018, he “interrupted” a discussion between I.F. and the assistant principal to ask the student a question.  Upon receiving an unsatisfactory response, the principal said “fine, we are done and ... you are suspended five days with a superintendent[’]s hearing.”  The principal further testified that he reached his decision to suspend prior to this exchange, when he spoke with the superintendent “and confirm[ed] ... [that] five days out with a superintendent’s hearing was a yes.”  The assistant principal generally corroborated this account at the hearing.  As indicated above, oral communication with a parent regarding a suspension is not 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).

Although the record contains a notice of short-term suspension dated December 6, 2018, there is no evidence concerning the circumstances of its delivery.  However, even assuming, arguendo, that respondent arranged for its delivery on December 6, 2018, the record reflects that the student’s suspension began immediately; i.e., as of December 6, which would not provide the student with an opportunity for an informal conference prior to the beginning of the suspension (see Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,846).  Additionally, although the notice indicates that the principal “intend[ed] to suspend” the student, this is belied by the principal’s testimony that he decided to impose a five-day suspension on the morning of December 6, 2018 after speaking with the superintendent.

The principal suggested at the hearing that his oral suspension of the student was justified to avoid “causing more of a disruption.”  However, respondent’s failure to indicate that the student was a continuing danger or ongoing threat of disruption in the notice of suspension itself 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).  Therefore, I find that respondent failed to provide legally sufficient written notice of the student’s proposed suspension prior to its imposition.  As a result, the student’s short-term suspension must be expunged from his record.

Turning to petitioner’s challenges to the long-term suspension, respondent found the student guilty of three charges:  (1) disorderly conduct; (2) a “pattern of inappropriate behavior over the course of this school year”; and (3) inappropriate conduct.  As explained below, I find that respondent failed to provide adequate notice of these charges and violated the student’s right to a fair hearing under Education Law §3214.

First, the charge of disorderly conduct must be dismissed because the district did not provide any notice of this charge prior to the long-term suspension hearing.  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., 91 NY2d 133).  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., 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 indicated above, the district did not inform petitioner or his attorney that it sought to charge the student with “disorderly conduct.”  The Commissioner has held that a district must be held to the language of the charges it chooses to pursue against a student (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,560; Appeal of J.M., 57 id., Decision No. 17,335; Appeal of A.F. and T.P., 56 id., Decision No. 16,997).  While it is not necessary that the charges in a student disciplinary proceeding be as specific as those required in a criminal proceeding, they must, nevertheless, 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 (Matter of Rose, 10 Ed Dept Rep 4, Decision No. 8,154).  I find that petitioner was provided with no notice of this charge, and that respondent’s sua sponte determination of guilt as to this charge, therefore, violated the student’s due process rights.[3]

Respondent also found the student guilty of the charges of “inappropriate conduct” and “pattern of inappropriate conduct and comments,” which appear to be derived from the original charge of “pattern of inappropriate conduct and comments.”  While this language provided petitioner with some notice of this charge, I nevertheless find that such notice was insufficient.  The notice provided no information as to the dates, number, content, or context of any such conduct or comments.  As such, I find that this charge was wholly insufficient to permit petitioner and her counsel to prepare a defense as to the charge relating to inappropriate comments (Appeal of F.P., 34 Ed Dept Rep, Decision No. 13,351 [opining in dicta that “sexual assault” as a description of the basis for charge without more details, e.g. date and location, was insufficient to satisfy due process]; compare Appeal of N.C., 56 id., Decision No. 17,001 [notice provided details of specific conduct on specific field trip sufficient to permit student to prepare to present his side of the story against charges of insubordination and disorderly conduct]; Appeal of a Student with a Disability, 50 id., Decision No. 16,168 [notice providing date of the incident, the student’s name, applicable sections of the code, and description of the knife sufficient for charges stemming from possession of a knife]; and Appeal of H.B., 44 id., Decision No. 15,146 [notice quoting specific language and phrases student alleged to have used sufficient for charges of threatening language and sexual harassment towards female students]).

The insufficient nature of the charges against the student is demonstrated by what transpired at the long-term suspension hearing.  I.F. pled not guilty at the outset of the hearing.  Thereafter, counsel for petitioner, who had not been provided with any information underlying the charges before the hearing, sought to identify the comments made by I.F. that formed the basis of the disciplinary charges against the student and objected to hearsay testimony concerning statements allegedly made by I.F.  For example, at one point, petitioner’s counsel stated, “[o]bjection, these students again, what did these people say, we don’t know who is saying it, we don’t even have their initials and we don’t have specifically when they said it and so forth” (compare Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652 [petitioner demonstrated awareness of the comments with which the student was charged during the long-term suspension hearing, thus negating claim of inadequate notice of charges]).  Under these circumstances, I cannot conclude that I.F. was given a fair opportunity to prepare a defense, tell his side of the story, and rebut the evidence against him regarding the charge of “pattern of inappropriate conduct and comments” (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; see also Appeal of F.P., 34 Ed Dept Rep, Decision No. 13,351).

Although respondent described a single incident of misconduct in the notice of short-term suspension, also dated December 6, 2018, respondent did not include this charge in the long-term suspension notice nor indicate that it sought to incorporate such incident by reference.  I further note that respondent revised the December 6, 2018 notice of long-term suspension on December 27, 2018 to indicate a revised hearing date but did not otherwise clarify or amend the charges against the student.  Under these circumstances, I decline to read the specific details of the incident described in the short-term suspension notice into the long-term suspension notice.

In light of this disposition, I need not address the parties’ remaining arguments.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent annul and expunge from the student’s record any reference to the short-term and long-term suspensions at issue in this appeal.

END OF FILE