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Decision No. 16,234

Appeal of J.V.O., Jr., on behalf of his son J.V.O., III, from action of the Board of Education of the Three Village Central School District regarding student discipline.

Decision No. 16,234

(June 3, 2011)

Lamb & Barnosky, LLP, attorneys for respondent, Eugene R. Barnosky, Esq., Robert H. Cohen, Esq., and Mara N. Harvey, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the decision of the Board of Education of the Three Village Central School District (“respondent”) to suspend his son from school.  The appeal must be sustained in part.

On the morning of Friday, October 16 2009, J.V.O., III (“J.V.O.”), a junior in respondent’s high school, was involved in a physical altercation with another student.  J.V.O. was sent home and that afternoon, a notice in accordance with Education Law §3214(3), was hand delivered to petitioner’s residence notifying him that J.V.O. would be suspended for five days commencing on October 19, 2009.   Also on October 16, the high school dean telephoned petitioner, informing him of the principal’s decision suspending J.V.O. for five days and his right to an informal conference.  Petitioner requested such conference and was transferred to the principal’s office where he left a voicemail with his request.  The principal’s office did not return petitioner’s call until October 19, 2009, the first day of J.V.O.’s suspension, after the start of the school day.  At that time petitioner was informed that the principal could meet with him before noon.  Petitioner met with the principal and two high school deans.  At that conference, J.V.O.’s suspension was reduced to four days after his academic and disciplinary records were considered. Petitioner appealed to respondent which upheld the suspension. This appeal ensued.

Petitioner challenges the suspension, contending that J.V.O. was acting in self-defense, that the district’s policy prohibiting any defensive action other than positioning one’s hands and arms in a covering type position is invalid and that the determination was not based upon competent and substantial evidence. Petitioner also claims that respondent failed to comply with Education Law §3214 in that he was not provided timely notice and opportunity for an informal conference prior to the suspension, that he was not permitted to question complaining witnesses and that J.V.O. was suspended in excess of five days without the opportunity for a hearing.

Respondent asserts that the suspension is supported by substantial and competent evidence, the penalty is appropriate and that J.V.O. was afforded appropriate due process.  

I must first address a procedural matter.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). The suspension has been served and, therefore, the appeal is moot, except to the extent petitioner seeks expungement of J.V.O.’s records.

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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of a F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  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 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]). 

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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

On the date of the incident, October 16, 2009, the district both hand delivered and mailed notification to petitioner that the principal intended to suspend J.V.O. for five days, commencing on October 19, 2009.  However, petitioner claims that J.V.O.’s suspension actually commenced on October 16, 2009, following J.V.O.’s visit to the nurse’s office.  Respondent denies that J.V.O. was suspended that day, stating that he was dismissed due to injuries sustained in the physical altercation.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  On the record before me, petitioner has not established that J.V.O.’s early dismissal on the date of the incident constituted a disciplinary suspension from instruction.  Therefore, I find that the suspension did not commence until October 19, 2009.

The notice delivered to petitioner on October 16, 2009 informed him of the right to an informal conference prior to the suspension at which he could question complaining witnesses.  However, petitioner’s telephone calls to the principal’s office on October 16, 2009 were not returned. 
Petitioner called again the morning of October 19, 2009 – the first day of J.V.O.’s suspension.  The principal’s office notified petitioner that the principal was available to meet before noon.  At approximately 11:30 a.m., the informal conference took place.  Thus, the informal conference was not conducted prior to the imposition of the short-term suspension.  Respondent claims that at no point was petitioner informed that J.V.O. could not attend class prior to the informal conference on the morning of October 19, 2009.  I find respondent’s argument unpersuasive, as the October 16, 2009 notice sent to petitioner indicated that J.V.O. was suspended “effective October 19, 2009.”  Accordingly, it was reasonable for petitioner to infer that J.V.O. was excluded from attending classes on that date and there is no evidence that respondent advised petitioner otherwise.  I also note that respondent never alleged that J.V.O.’s presence in school posed a continuing danger or threat of disruption.  Therefore, the principal was obligated to conduct the informal conference before suspending J.V.O.  By failing to hold the informal conference prior to J.V.O.’s suspension, respondent did not comply with the requirements of Education Law §3214(3)(b)(1).  Consequently, the suspension must be annulled and expunged from J.V.O.’s record.

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


IT IS ORDERED that respondent expunge from J.V.O.’s record any reference to the student’s suspension during the period of October 19, 2009 to October 23, 2009.