Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Plainedge Union Free School District regarding Student Discipline.

Decision No. 17,988

(May 6, 2021)

Ingerman Smith, LLP, attorneys for respondent, David F. Kwee, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Plainedge Union Free School District (“respondent”) to suspend her daughter (“the student”) and seeks expungement of the suspension.  The appeal must be sustained.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  At all times relevant to this appeal, the student attended seventh grade in respondent’s district.  In a letter dated January 23, 2020, the middle school principal notified petitioner that the student was suspended for five days beginning on January 24, 2020.

In an email dated January 31, 2020, petitioner appealed the principal’s decision to respondent’s superintendent.  In an email reply that same day, the superintendent denied petitioner’s appeal.

In a letter dated February 11, 2020, petitioner appealed the superintendent’s determination to respondent.  Respondent denied the appeal in a letter dated June 12, 2020.  This appeal ensued.

Petitioner alleges, among other claims, that the January 23, 2020 written notice of suspension did not notify petitioner of her rights to request an informal conference with the principal and question complaining witnesses.  Petitioner further alleges that the student was provided insufficient alternative instruction while she was suspended.  For relief, petitioner seeks expungement of the suspension from the student’s record.

Respondent argues that the petition must be dismissed as untimely because it was served more than thirty days after its June 12, 2020 decision.  Respondent also contends that the petition must be dismissed because the notice of petition improperly stated that an answer must be served within ten days instead of twenty.  Respondent further argues that the appeal is moot to the extent that it challenges the suspension itself or the sufficiency of alternative instruction services.  On the merits, respondent contends that it met with petitioner and provided her with written notice of the suspension.  Petitioner also contends that a five-day suspension was an appropriate penalty under the circumstances.

First, I must address the procedural issues.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving notice of the determination or act (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not reveal when a petitioner received notice, the date of receipt is calculated as the date of the determination or act plus five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

The record does not indicate when petitioner received respondent’s June 12, 2020 determination.  Therefore, affording the usual five days for mailing, petitioner’s service of the appeal on July 14, 2020 was well within the 30-day time limitation.  Although respondent indicates that it made its decision on May 26, 2020, there is no evidence that respondent informed petitioner of the decision until the June 12, 2020 letter.  It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring a proceeding (see Appeal of N.M., 59 Ed Dept Rep, Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483; Appeal of O’Brien, 51 id., Decision No. 16,316, petition dismissed; Matter of O’Brien v. New York State Commr. of Educ. [July 3, 2012], affd 112 AD3d 188 [3d Dept. 2013], app dismissed 22 NY3d 1125 [2014], mot for lv denied 23 NY3d 903 [2014]; cert denied 574 US 959 [2014]).

Petitioner next argues that the appeal must be dismissed because the notice of petition erroneously indicated that respondent had ten days to serve an answer to the petition, rather than the twenty days established by State regulation (see 8 NYCRR 275.11).  It appears that petitioner inadvertently utilized the language applicable to the notice of petition in a charter school location/co-location appeal (see 8 NYCRR 276.11 [c] [2]). 

I decline to dismiss the appeal on this basis.  The purpose of the notice of petition is to apprise respondent of the appeal against it and its rights thereto.  This goal was satisfied when respondent submitted its answer within 20 days, which I have considered in reaching my determination.  Moreover, because petitioner is not represented by counsel, a liberal interpretation of the Commissioner’s regulations is appropriate absent prejudice to the opposing party (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  On this record, respondent has not demonstrated that it was prejudiced by the improper notice contained in the original petition.  Therefore, I decline to dismiss the appeal (cf. Matter of the Board of Education of the City School District of the City of New York, 22 Ed Dept Rep 48, Decision No. 10,877).

Respondent additionally asserts that certain aspects of the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

The record indicates that the student has served the short-term suspension at issue in this appeal.  Therefore, I agree with respondent that the appeal is moot insofar as the student has served her entire suspension.  Relatedly, I agree that petitioner’s challenge to the sufficiency of alternative instruction during the suspension period is moot (Appeal of C.B. and B.R., 50 Ed Dept Rep, Decision No. 16,192).  However, it is well established that a request to expunge a student’s disciplinary record does not become moot simply because the student has served the underlying suspension (Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581; Appeal of E.B. and F.B., 53 id., Decision No. 16,545; Appeal of F.W., 48 id. 399, Decision No. 15,897).  Therefore, petitioner’s claim is not moot with respect to her request for expungement.

Additionally, petitioner submitted a reply in this matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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]

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).  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 proposed the suspension in the first instance and 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 establishing the facts upon which he or she 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 written notice did not, as required by Education Law §3214 (3) (b) (1) and 8 NYCRR 100.2 (l) (4), apprise petitioner of her rights to an informal conference with the principal or to question complaining witnesses (see e.g. Appeal of C.K., 58 Ed Dept Rep, Decision No. 17,520; Appeal of S.K., 56 id., Decision No. 17,031).  Although the record indicates that petitioner had the opportunity to discuss the incident with the principal by telephone on January 30, 2021 – and, in fact, attended a meeting with the principal that day – it is well settled that “[h]olding 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 R.J and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; see also Appeal of S.K., 56 id., Decision No. 17,031; 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). 

Even if the notice had been legally sufficient, respondent did not provide such notice prior to imposition of the student’s suspension.  The January 23, 2020 letter indicated that the student “is suspended” and identified the suspension period as January 24 through 30, 2020.  Thus, the plain language of the notice indicates, in violation of 8 NYCRR 100.2 (l) (4), that respondent reached a decision to suspend the student before offering petitioner the opportunity for an informal conference with the principal, at which she could question complaining witnesses (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,846; Appeal of a Student with a Disability, 58 id., Decision No. 17,553).[2]

While respondent contends on appeal that the principal deemed the student a continuing danger or ongoing threat of disruption, respondent’s failure to include such determination in the notice of suspension itself precludes it from relying upon such rationale on appeal (see e.g. Appeal of T.F., 60 Ed Dept Rep, Decision No. 17,916; Appeal of a Student with a Disability, 56 id., Decision No. 17,111; Appeal of T.T. and K.T., 52 id., Decision No. 16,386).  In addition, as petitioner correctly points out, respondent cannot claim that the student’s presence at school posed a continuing danger or threat of disruption after it had informed the district’s residents in an email that there was no credible threat present at the school.

Finally, I am compelled to comment on the manner in which respondent considered petitioner’s appeals.  In both her January 31, 2020 appeal to the superintendent and February 11, 2020 appeal to the board, petitioner cited materially indistinguishable decisions of the Commissioner finding that school districts provided legally insufficient written notices of suspension.[3]  Respondent and the superintendent, however, summarily denied petitioner’s appeals without providing any reasoning.  Most concerningly, the superintendent issued a pro forma denial of petitioner’s appeal 20 minutes after it had been emailed to him.  On appeal, the superintendent explains his reasoning as follows:

I focused my review on whether the ultimate suspension was fair ... Although I considered the claimed procedural violations, ... I received the Appeal after the short-term suspension had already been served.  Accordingly, I denied the Appeal inasmuch as the suspension was over and deemed the issues relative to the short-term suspension to be moot.

This reflects a misunderstanding of the district’s obligations in reviewing such an appeal.  If a school officer or employee concludes that a district violated a student’s due process rights in connection with a served suspension – including her or his right to legally sufficient written notice under Education Law § 3214 (3) (b) (1) and 8 NYCRR 100.2 (l) (4) – it must immediately expunge the suspension from the student’s record.  This remedy cannot be deferred if and until a parent commences an appeal to the Commissioner of Education.  I admonish respondent to carefully review student discipline appeals in the future.

Based upon the above deficiencies with the written notice, the student’s suspension must be expunged from her 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).  In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent annul and expunge from the student’s record all references to the student’s short-term suspension between January 24, 2020 and January 30, 2020.

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