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Decision No. 14,553

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the Roslyn Union Free School District relating to student discipline.


Decision No. 14,553


(March 28, 2001)


Jaspan Schlesinger Hoffman, LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals his son"s suspension from school and requests that the Board of Education of the Roslyn Union Free School District ("respondent") be directed to expunge the suspension from his son's record. The appeal must be sustained.

Petitioner"s son is eleven years old and attends the sixth grade in respondent"s middle school. On October 27, 2000, the assistant principal telephoned petitioner"s wife and advised her that her son was being suspended and that one of his parents needed to come to school to take him home. When petitioner arrived, he met with the principal and assistant principal and was advised that his son was suspended for two days. A letter dated October 27, 2000, was sent by overnight mail on October 30, 2000, informing petitioner that his son was suspended for insubordination, including hitting a teacher, hitting students, disrupting classes and running away from school personnel. A "principal"s hearing" was scheduled for November 1, 2000, after which the student would be allowed to return to school if he was ready to stop disrupting classes, comply with the rules of the school discipline code and obey the instructions of school personnel. The notice further stated that petitioner"s son was on probation, and conditioned his future participation in extracurricular activities, school trips and all other school functions on his demonstration of appropriate behavior. The notice concluded with a renewed offer of educationally-related support service and in-school counseling for petitioner"s son. Respondent did not provide alternative instruction to petitioner"s son during the suspension on October 30 or 31. By letter dated November 1, 2000, petitioner was advised that his son would not be allowed to go with his class on a field trip to the Metropolitan Museum of Art unless accompanied by one of his parents.

By letter dated November 3, 2000, petitioner asked the superintendent to expunge the suspension from his son"s record. The superintendent denied this request on November 13, 2000. Petitioner objected to the superintendent"s decision in a letter dated November 15, 2000. This appeal ensued.

Petitioner seeks an order expunging from his son"s record any reference to the suspension which he contends was imposed without timely, proper notice and an opportunity to confront and question the complaining witness. Petitioner also requests that respondent be admonished for violating Education Law "3214 by failing to provide his son with alternative instruction and for violating its code of conduct by imposing probation and multiple punishments for the same incident.

Respondent admits that it failed to provide alternative instruction to petitioner"s son but asserts that he was apprised of the work he missed and afforded an opportunity to complete missed assignments upon his return to school. Respondent denies its written notice was untimely but argues that, even if it was not received until October 31, 2000, petitioner was notified of the suspension immediately by telephone. Respondent further contends that petitioner was provided an informal conference on October 27, 2000 with the principal and assistant principal and was allowed to question a teaching assistant assigned to the Independent Work Center, all of whom were complaining witnesses. Respondent argues that it was therefore unnecessary for petitioner to question the classroom teacher who claimed that petitioner"s son hit her on the head with a file of papers.

Education Law "3214(3)(b) provides that, in the case of a suspension by a principal, not to exceed five days, the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal at which the pupil and/or person in parental relation shall be authorized to present the pupil"s version of the event and to ask questions of the complaining witnesses." Notice of the right to request an informal conference is required under 8 NYCRR "100.2(l)4):

(4) Parental notice concerning student suspensions. When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be 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 decision to propose suspension" (Emphasis added).

The purpose of "100.2(l)(4) is to require that 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, and who has authority to terminate or reduce the suspension. This procedure affords the principal the opportunity to decide whether his 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 witnesses without the principal present (Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Milano, 37 id. 472, Decision No. 13,908; Appeal of Jones, 35 id. 1, Decision No. 13,444).

In this case, respondent failed to comply with the regulation in more than one respect. First, the record indicates that the written notice was mailed on October 30, 2000 for delivery on October 31, 2000, the second day of the two-day suspension. Although petitioner was informed of the suspension by telephone on October 27, 2000, notification by telephone is required by "100.2(l)(4) in addition to written notice, where possible, and not as a substitute (Appeal of Milano, supra). In this case, respondent could have complied with the timeline by personally delivering the written notice dated October 27, 2000 to petitioner at the meeting on that date with the principal.

Second, the October 27, 2000 letter did not give petitioner notice of the right to an informal conference with the principal at which petitioner could ask questions of complaining witnesses. Accordingly, the suspension of petitioner"s son on October 30 and 31, 2000 must be annulled and expunged from the student's record (Appeal of Milano, supra; Appeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860; Appeal of Jones, supra).

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 the suspension (Appeal of Bridges, 34 Ed Dept Rep 232, Decision No. 13,291). It is undisputed that petitioner"s son received no alternative instruction during the two-day suspension. Respondent is admonished to comply in the future with the dictates of Education Law "3214 regarding the provision of alternative instruction to students of compulsory school age.




IT IS ORDERED that respondent"s suspension of petitioner"s son from October 30, 2000 through October 31, 2000 be annulled and expunged from his record.