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Decision No. 16,017

Appeal of B.B., on behalf of her son J.B., from action of the Board of Education of the Shoreham-Wading River Central School District regarding student discipline.

Decision No. 16,017

(February 6, 2010)

Berger & Brandow, LLP, attorneys for petitioner, Regina Brandow, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Shoreham-Wading River Central School District (“respondent”) to uphold the suspension of her son, J.B.  The appeal must be sustained.

J.B. was a seventh grade student in respondent’s middle school during the 2008-2009 school year.  On October 30, 2008, J.B., a member of the school’s football team, had an altercation with another football player and allegedly “kneed him” in the groin three times.  The football coach investigated the matter and J.B. admitted that he had kneed the other player.  J.B. and the other player were immediately removed from the football team and the matter was referred to the school’s principal and assistant principal for potential discipline.

On Friday, October 31, 2008, the principal and assistant principal questioned J.B.  The principal then called petitioner inviting her to come to the school for an informal conference, explaining that she would have the right to question complaining witnesses.  By the time petitioner arrived, the complaining witnesses had left for the day.  J.B., who was home, participated by speakerphone during this conference.

While petitioner attended the conference, a letter was delivered to J.B.’s home stating that the principal was considering suspending J.B. for one day and that petitioner had the right to an informal conference at which she could ask appropriate questions of the complaining witnesses and principal.  J.B. was suspended from school for one day, Monday, November 3, 2008.  On November 3, 2008, the final disciplinary determination was delivered to J.B.’s home.

Following an appeal to the superintendent, petitioner appealed to respondent, which, by letter dated December 17, 2008, upheld the suspension.  This appeal ensued.

Petitioner contends that the district violated Education Law §3214(3)(b)(1) and §100.2(l)(4) of the Commissioner’s regulations by failing to provide her an opportunity to confront complaining witnesses.  Additionally, petitioner claims that respondent did not immediately notify J.B. of the penalty imposed, in violation of respondent’s code of conduct.  Petitioner requests that J.B.’s suspension be expunged from his record.

Respondent contends that the one-day suspension was imposed in full compliance with the Education Law, Commissioner’s regulations and the district’s code of conduct and that J.B. received adequate due process.  Respondent also argues that the appeal is moot and untimely.

Initially, I must address the parties’ memoranda of law.  Respondent requests that I reject petitioner’s March 10, 2009 letter and accompanying memorandum of law.  The Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]).  Because petitioner has not provided good cause for her delay in submitting the memorandum of law, nor demonstrated its necessity to the determination of this appeal, I have not considered it.

A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Thus, I have not considered respondent’s memorandum of law to the extent it adds belated assertions and exhibits that are not part of the pleadings.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Because the student has served the suspension, the appeal is moot except to the extent that petitioner seeks expungement of the suspension from J.B.’s record (Appeal of L.O. and D.O., 47 Ed Dept Rep 194, Decision No. 15,666; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student with a Disability, 44 id. 136, Decision No. 15,124).

Respondent also asserts that the appeal is untimely. 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 Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).

Although it is discussed generally, there is no evidence in the record to indicate exactly when petitioner received respondent’s December 17, 2008 letter.  Affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be December 24, 2008.  Thus, petitioner had to commence her appeal on or before January 23, 2009.  Petitioner’s affidavit of service states that respondent was served on January 16, 2009.  Therefore, I will not dismiss the appeal as untimely.

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).

The written notice of a short-term suspension 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 (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

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 a Student with a Disability, 45 Ed Dept Rep 531, Decision No. 15,406; Appeals of E.R., 45 id. 487, Decision No. 15,389).

Petitioner asserts that she was denied the opportunity to confront complaining witnesses.  The parties dispute whether petitioner requested to meet with complaining witnesses before and during the October 31, 2008 informal conference.  Petitioner provides an affidavit stating that she asked to meet with complaining witnesses during her phone conversation with the principal and at the informal conference that same day.  The principal, in an affidavit, states that when she spoke to petitioner by telephone to set up the meeting, petitioner advised her that she could not meet until about 3:45 p.m., and that she told petitioner that she might not be able to have the complaining witnesses present because they would have left school for the day.  The principal further indicates that petitioner wanted to speak to the principal and assistant principal and stated that it was not necessary to meet with the complaining witnesses. 

Although petitioner was made aware of her right to an informal conference and to question complaining witnesses verbally, this is insufficient to meet the requirements of the Education Law and Commissioner’s regulations.  Written notice must be provided in a manner which would notify petitioner of her statutory right to question complaining witnesses prior to the informal conference. It is undisputed that the written notice of short-term suspension was delivered to petitioner’s home while she was attending the meeting with the principal and assistant principal.    On these facts, absent written notice of her right to question complaining witnesses prior to the informal conference, petitioner was in effect denied her right to do so and I cannot infer a knowing waiver (seeAppeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681).  Once written notice was provided, petitioner was not afforded an opportunity for an informal conference before the suspension began on the next school day.  It is insufficient to provide merely an opportunity to speak with the principal without the complaining witnesses present, or an opportunity to speak with complaining witnesses without the principal present (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of P.D., 46 id. 50, Decision No. 15,438; Appeal of B.C. and A.C., 42 id. 395, Decision No. 14,891).

Accordingly, the one day suspension that occurred on November 3, 2008 must be annulled and expunged from J.B.’s record.

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


It IS ORDERED that respondent expunge from the student’s record any reference to the November 3, 2008 suspension.