Appeal of L.O. and E.O., on behalf of their son T.O., from action of the Board of Education of the North Babylon Union Free School District regarding student discipline.

Decision No. 16,007

(January 8, 2010)

Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

STEINER, Commissioner.--Petitioners challenge the suspensions of their son, T.O., and request that the Board of Education of the North Babylon Union Free School District (“respondent”) be directed to expunge the suspensions from T.O.’s record.  The appeal must be sustained in part.

During the 2008-2009 school year, T.O. was a kindergarten student in respondent’s Belmont Elementary School.  Between October 2008 and March 2009, T.O. was suspended from school four times for various acts of misbehavior: on October 16 and October 22-24, 2008 and January 7-9 and February 10-12, 2009.  On two of those occasions, an in-school suspension was imposed on T.O. on the day prior to the out-of-school suspension.

Petitioners were notified of the suspensions by letters dated October 15 and 21, 2008 and January 6 and February 9, 2009.  The last two letters notified petitioners of their right to an informal conference.  The first two did not.  None of the letters informed petitioners of their right to question complaining witnesses.  Subsequently, petitioners objected to the suspensions in writing and met with the superintendent to discuss their concerns.  By letter dated April 15, 2009, petitioners complained to respondent that T.O.’s due process rights were violated.

Petitioners allege that respondent failed to comply with Education Law §3214 and therefore violated their son’s right to due process.  They request that the suspensions be expunged from T.O.’s school record and that the district provide “educational restitution” in the form of home tutoring.

Respondent contends that the appeal is untimely and that petitioners have failed to meet their burden of establishing a clear right to the relief requested.

Initially, I must address petitioners’ reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The parties agree that respondent’s policy requires an appeal to the board prior to the commencement of an appeal to the Commissioner.  While respondent asserts that it never received an appeal, the record indicates that petitioners did appeal T.O.’s suspensions by letter dated April 15, 2009.  Given respondent’s failure to address petitioners’ April 15, 2009 appeal letter, I find this appeal, commenced on June 24, 2009, to be timely.

In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.C. and D.C., 46 id. 447, Decision No. 15,560; Appeal of Y.P. and S.P., 46 id. 445, Decision No. 15,559).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.C. and D.C., 46 id. 447, Decision No. 15,560; Appeal of Y.P. and S.P., 46 id. 445, Decision No. 15,559).  The record reflects that petitioners were notified in writing of the two in-school suspensions and discussed them with the principal on the day they occurred.  Petitioners also met twice with the superintendent to express their concerns over these suspensions.  In addition, the January 6, 2009 letter from the principal notified petitioners of their right to an informal conference.  I find these actions satisfy respondent’s obligation of procedural fairness and therefore the in-school suspensions must be sustained (seeAppeal of Gaslow, 34 Ed Dept Rep 293, Decision No. 13,315).

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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).  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 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 or her original decision to suspend was correct or should be modified (Appeal of J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).

In this case the notices were inadequate.  The October 15 and 21, 2008 letters failed to notify petitioners of their right to an informal conference and to question complaining witnesses.  The January 6 and February 9, 2009 letters, although notifying petitioners of their right to an informal conference, failed to notify petitioners of their right to question complaining witnesses.  Accordingly, the four out-of-school suspensions must be annulled and expunged from T.O.’s record (Appeal of J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of P.D., 46 id. 50, Decision No. 15,438).

Finally, petitioners’ request for “educational restitution” must be dismissed.  All four suspension letters advised petitioners of their right to home instruction during the periods of suspension.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Petitioners have not met this burden.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from T.O.’s record any reference to the suspensions of October 16 and 22-24, 2008, and January 7-9, 2009, and February 10-12, 2009.

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