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Decision No. 14,347

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her parent, from action of the Board of Education of the City School District of the City of Utica regarding student discipline.

Decision No. 14,347

(April 25, 2000)

Legal Aid Society of Mid-New York, Inc., attorneys for petitioner, Paul J. Lupia, Esq., of counsel

Donald R. Gerace, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Utica ("respondent") to suspend her daughter from school. The appeal must be sustained.

Petitioner’s daughter is eleven years old and attended the sixth grade at respondent’s John F. Hughes School from January 24 until January 28, 2000. On or about January 28, 2000, she was involved in an incident at school in which she allegedly refused to follow her teacher’s instructions and began "yelling" and "cursing." She was suspended from January 31 through February 4, 2000 for insubordination, disorderly conduct and endangerment to health, safety or morals of self or others.

A superintendent’s hearing was held on February 4, 2000, and the hearing officer recommended that petitioner’s daughter be placed on home instruction pending placement in the Elementary Alternative Education Program. By letter dated February 17, 2000, petitioner’s attorney sought the student’s return to the classroom and respondent’s final determination regarding the suspension. Petitioner commenced this appeal on February 25, 2000. On March 1, 2000, petitioner’s daughter was referred to respondent’s Committee on Special Education ("CSE") to determine whether she is a student with a disability. On March 14, 2000, respondent voted not to adopt the superintendent’s determination and directed that petitioner’s daughter be returned to the classroom. In light of respondent’s action on March 14, 2000, petitioner withdrew that portion of her petition appealing the suspension of her daughter in excess of five days.

Petitioner contends that the notice of the five-day suspension violated Section 100.2(l)(4) of the Regulations of the Commissioner of Education to the extent that it failed to inform her of her right to request an immediate informal conference with the principal. Petitioner also contends that respondent failed to provide her daughter with educational services during the suspension period.

Respondent contends that the suspension of petitioner’s daughter for five days was authorized by Education Law "3214. Respondent also contends that petitioner’s daughter was afforded the opportunity for homebound instruction during this suspension.

Petitioner’s claim that respondent suspended her daughter without providing notice of her right to an informal conference has merit. Education Law "3214(3)(b) provides that, in the case of the suspension of a student for a period not to exceed five days, the student and her parents "shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of the complaining witnesses." Notice of the right to request an informal conference is required under 8 NYCRR "100.2(1)(4) which provides:

  1. Parental notice of student suspensions. Where a student is suspended from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student has been suspended from school. Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension at the last known address or addresses of the parents or persons in parental relation. Where possible, notification shall also be provided by telephone if the school has been provided with a telephone number(s) for the purpose of contacting parents or persons in parental relation. Such notice shall provide a description of the incidents(s) which resulted in the suspension and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b). Such notice and informal conference shall be in the dominant language or mode of communication used by the parents in parental relation to the suspended pupil.

The purpose of "100.2(1)(4) is to require that the parents of a student suspended for five days or less are made aware of the statutory right provided in Education Law "3214(3)(b) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance. This procedure affords the principal the opportunity to decide whether the original decision to suspend was correct or should be modified. It is insufficient to provide merely an opportunity to speak to the principal without the complaining witnesses present, or an opportunity to speak to the complaining witness without the principal present (Appeal of Milano, 37 Ed Dept Rep 472, Decision No. 13,908; Appeal of Pinckney, 37 id. 284, Decision No. 13,860; Appeal of Jones, 35 id. 1, Decision No. 13,444).

The written notice dated January 28, 2000 refers to an out-of-school suspension of petitioner’s daughter from January 31 through February 4, 2000 without informing petitioner of the right to an opportunity for an informal conference with the principal at which petitioner could ask questions of complaining witnesses. The record contains no other notice provided to petitioner by respondent. Accordingly, respondent’s suspension of petitioner’s daughter from January 31 until the February 4, 2000 hearing must be annulled and expunged from the student’s record (Appeal of a Student with a Disability, 38 Ed Dept Rep 378; Appeal of Milano, supra; Appeal of Pinckney, supra; Appeal of Jones, supra).

With regard to the issue of alternative instruction, when a student of compulsory school age is suspended pursuant to Education Law "3214, a school district must act reasonably promptly to provide alternative instruction regardless of the length of suspension (Appeal of Bridges, 34 Ed Dept Rep 232, Decision No. 13,291). While the parties dispute whether petitioner’s daughter was afforded the opportunity for home instruction, there is no evidence in the record that petitioner’s daughter received alternative instruction during the five-day suspension. Respondent is admonished to fully comply in the future with the dictates of Education Law "3214 regarding the provision of alternative instruction in the imposition of disciplinary sanctions.


IT IS ORDERED that respondent’s suspension of petitioner’s daughter from January 31, 2000 through February 4, 2000, be annulled and expunged from her record.