Appeal of D.C., on behalf of her child, from action of the Board of Education of the Great Neck Union Free School District regarding student discipline.

Decision No. 18,393

(March 20, 2024)

Ingerman Smith, L.L.P., attorneys for respondent, Keith T. Olsen, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from a decision of the Board of Education of the Great Neck Union Free School District (“respondent” or “board”) to suspend her child (the “student”).  The appeal must be sustained.

During the 2022-2023 school year, the student attended respondent’s middle school.  On January 24, 2023, the student was involved in a physical altercation with two classmates in the locker room.  Upon learning of the incident, an assistant principal called petitioner to inform her that the district was considering suspending her child.  He asked petitioner to come to the school that afternoon.

When petitioner arrived, she met with the principal and assistant principal.  The principal provided petitioner with two letters during this meeting.  The first, delivered to petitioner at the beginning of the meeting, provided notice of the proposed suspension and petitioner’s rights in connection therewith.  The second, delivered at the conclusion of the meeting, indicated that an informal conference had occurred and that the student was suspended for a single day, January 25, 2023.  Petitioner appealed this suspension to the superintendent and respondent, both of which were denied.  This appeal ensued.

Petitioner argues, among other things, that respondent did not provide her with legally sufficient written notice prior to the student’s suspension.  Petitioner seeks expungement of the suspension from the student’s record.

Respondent disputes petitioner’s account of the events precipitating the student’s suspension, arguing that it provided petitioner with “legally compliant procedural due process.”

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).

Respondent asserts that the principal handed petitioner an envelope containing the required written notice, with the assistant principal standing by, at the beginning of the January 24 meeting with petitioner.  The principal asserts that he told petitioner that the student “might face a suspension and that the letter set [] forth [petitioner’s] applicable due process rights.”  However, there is no evidence petitioner received an opportunity to review the contents of the letter or that any complaining witnesses—the other students, or, possibly, a teacher—were present.[1]  As such, the January 24, meeting did not constitute an informal conference (Appeal of J.Y. and C.Y., 57 Ed Dept Rep, Decision No. 17,403).[2]  Accordingly, I find that petitioner received inadequate notice of her rights to an informal conference and to question complaining witnesses (Appeal of J.Y. and C.Y., 57 Ed Dept Rep, Decision No. 17,403; compare Appeal of F.L. and D.L., 55 id., Decision No. 16,888).  As such, the student’s suspension must be expunged from his record (Appeal of L.O., 62 Ed Dept Rep, Decision No. 18,267).

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

THE APPEAL IS SUSTAINED.

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