Decision No. 14,565

(April 20, 2001)

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the North Colonie Central School District ("respondent") concerning the five-day suspension of his daughter. The appeal must be sustained in part.

On November 29, 2000, the LaFollette Hall Principal of Shaker High School, Jane W. Rose, advised petitioner’s wife by telephone that petitioner’s daughter was being suspended from Shaker High School for five days commencing on November 30, 2000, for conduct endangering the health, safety, morals or welfare of others. Petitioner’s daughter had allegedly brought a razor blade to school on November 27, 2000, and a friend who had a history of self-inflicted harm had cut herself with the blade.

On November 30, 2000, petitioner had a telephone conversation with Ms. Rose about the incident. On December 5, 2000, a suspension notice dated December 1, 2000, signed by the principal of Shaker High School, James O. Jackson, was mailed to petitioner. The notice was received by petitioner on December 6, the final day of his daughter’s suspension. The notice did not advise petitioner of his right to request an informal conference with the principal. After filing a written complaint with the district, petitioner met on December 21, 2000 with the superintendent, Mr. Jackson, Ms. Rose and respondent’s attorney. The district refused to annul the suspension, and this appeal ensued.

Petitioner contends that Ms. Rose had no authority under Education Law "3214 to suspend his daughter on November 30, 2000, and that the December 1, 2000 suspension notice signed by Mr. Jackson failed to advise petitioner that he could request an informal conference. Petitioner further contends that the district improperly sent the notice by first class mail on December 5, 2000 instead of by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt within 24 hours of the suspension. Petitioner requests that the suspension be annulled and expunged, and that his daughter not receive any retaliation or further disciplinary measures with respect to this matter.

Respondent concedes that the building principal did not sign the required notice until December 1, 2000, and that the notice was not mailed to petitioner until December 5, 2000 due to some "bureaucratic or mailing snafu." Respondent contends that petitioner was advised of the suspension by telephone and denies that the suspension and subsequent actions were improper. Respondent also contends that the petition is untimely.

I will first address the procedural objection. An appeal to the Commissioner must be instituted within thirty days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Although petitioner’s daughter was suspended commencing on November 30, 2000, the notice was not mailed to petitioner until December 5, 2000. Since the petition was served upon respondent on January 3, 2001, I find the appeal timely.

The appeal must be sustained in part. While a school principal may suspend a student from school, such authority may not be delegated to an assistant principal (Education Law "3214[3][b][1]); Ross v. Desare, 500 F.Supp. 928 [S.D.N.Y. 1977]; Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 169, Decision No. 14,204; Appeal of Pinckney, 37 id. 284, Decision No. 13,860). The principal reviewed and signed the suspension notice on December 1, 2000, but there is no evidence that he was even aware of the assistant principal’s decision to suspend the student two days earlier. Although respondent submitted an affidavit by the principal as part of its answer to the petition, the principal does not assert that he had any knowledge of the suspension on the day it was imposed or even the following day when it commenced.

In addition, the December 1, 2000 notice failed to advise petitioner that he had the right to an informal conference with the principal. Education Law "3214(3)(b)(1) requires that, in the case of a suspension by a principal not exceeding five days, the student and his parents shall, on request, be given an opportunity for an informal conference with the principal at which the student and parents may present the student’s version of the event and ask questions of the complaining witnesses. Although the statute further provides that prior notice and the opportunity for an informal conference is not required when a student’s presence in school poses a continuing danger, there is no evidence that respondent believed that petitioner’s daughter presented any continuing risk. In fact, the assistant principal permitted petitioner’s daughter to remain in school when it was ascertained that her parents were unable to pick her up on November 29, 2000.

Even if the district had determined that petitioner’s daughter posed a continuing risk, it would have been required to provide parental notification as soon after the suspension as was reasonably practicable. Section 100.2(l)(4) of the Commissioner’s regulations requires that written notice be provided immediately by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt within 24 hours of the decision to propose suspension. The record indicates that the suspension began on November 30, 2000, but the notice was not mailed to petitioner until December 5, 2000. The written notice that was sent was also deficient in that it did not inform petitioner of his right to an immediate informal conference with the principal. Failure to offer petitioner this opportunity requires the annulment of the suspension and expungement of this penalty from the student’s record (Appeal of Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Milano, 37 id. 472, Decision No. 13,908).

The conduct acknowledged by petitioner is a very serious matter. While recent amendments to Education Law "3214 grant schools additional powers to address student misconduct, "3214 also provides for a system of checks and balances to ensure sufficient procedural safeguards. I am constrained to sustain this appeal because the district failed to employ these safeguards when it suspended petitioner’s daughter. Although the suspension must be annulled, there is no evidence that respondent intends to retaliate against petitioner’s daughter in any way or will seek to impose any additional disciplinary penalty upon her in connection with this matter. I, therefore, decline to grant the additional relief requested by petitioner. Respondent should review its suspension procedures and correspondence to ensure that they comply with the Education Law and Commissioner's regulations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's suspension of petitioner's daughter from November 30 to December 6, 2000 be annulled and expunged from her record.

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