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Decision No. 16,439

* Subsequent History: Matter of Vestal Cent. School Dist. v King; Supreme Court, Albany County; Decision and Order remanded for further proceedings; September 25, 2013; Commissioner issued Decision No. 16,583; January 13, 2014. *

Appeal of C.M., on behalf of her daughter T.M., from action of the Board of Education of the Vestal Central School District regarding student discipline.

Decision No. 16,439

(December 24, 2012)

Aswad & Ingraham, attorneys for petitioner, Thomas A. Saitta, Esq., of counsel

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, Michael G. Surowka, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Vestal Central School District (“respondent”) upholding the suspension of her daughter, T.M.  The appeal must be sustained.

T.M. is a student at respondent’s Vestal Senior High School (“school”).  The record indicates that on December 1, 2010, several students participated in “Kick a Jew Day” (“the incident”) during which they kicked Jewish students.  An investigation was conducted by the principal and assistant principals.  During her investigation, the principal became aware that the school’s small Jewish population was concerned about retaliation if they worked with the administration to identify the students who participated in the incident. In her affidavit, the principal explained that, during the investigation period, several student victims received telephone calls from families of the students who participated in the incident asking them not to implicate their children.  The principal averred that a student who witnessed T.M.’s conduct agreed to speak with the principal only in confidence.  

By letter dated January 20, 2011, petitioner was notified that the principal was considering suspending T.M. for a period of five days or less in relation to her conduct on December 1, 2010.  The letter advised that petitioner and T.M. would have the opportunity for an informal conference with the principal on January 24, 2011, where they would be permitted to present T.M.’s version of the events and ask questions of the complaining witnesses.  Following this informal conference, the principal suspended T.M. for three school days. 

By letter to the superintendent dated January 31, 2011, petitioner appealed the suspension.  In a second letter dated February 7, 2011, petitioner provided additional details about the circumstances surrounding T.M.’s suspension.  On February 9, 2011, petitioner’s counsel provided a letter with supplemental supporting materials and details.  The superintendent denied petitioner’s appeal by letter dated February 8, 2011.  On February 18, 2011, petitioner’s counsel appealed the superintendent’s determination and requested an opportunity for petitioner to speak before respondent.  Respondent considered the appeal at its March 8, 2011 meeting and affirmed the superintendent’s determination.  This appeal ensued. Petitioner’s request for interim relief was denied on March 23, 2011.

Petitioner contends that the notice failed to sufficiently inform her of the conduct for which T.M. was being suspended.  Petitioner also claims that she did not receive an opportunity to question complaining witnesses. 

Respondent asserts that the district fully complied with the requirements of Education Law §3214(3) and that petitioner had the opportunity to confront the principal as the complaining witness.  

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 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 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).

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).

Petitioner’s claim that the January 20, 2011 notice failed to inform her of the conduct upon which the proposed suspension was based is without merit.  The notice specifically states, “It is alleged that [T.M.] endangered the safety, morals, health or welfare of herself or others, in that on or about December 1, 2010, [T.M.] kicked at least one student during an incident of bullying.”  The letter cited the provisions of respondent’s Code of Conduct which T.M. was charged with violating.  Further, the record contains a statement written by T.M. two days prior to the informal conference which addresses the event indicated in the notice.  Accordingly, petitioner has failed to carry her burden with respect to this claim.

The record indicates that petitioner met with the principal and two assistant principals on January 24, 2011, before the suspension was imposed.  Although the principal investigated the incident and interviewed witnesses, she did not personally observe T.M.’s participation in the incident.  Accordingly, under these circumstances, she was not the complaining witness (Appeal of R.N.T. and M.T., 47 Ed Dept Rep 298, Decision No. 15,702; Appeal of J.Z., 47 id. 243, Decision No. 15,681).  Although there have been circumstances where the principal was the complaining witness (cf.Appeal of E.S., 50 id., Decision No. 16,105 [where principal viewed videotape of student’s conduct]; Appeal of C.C. and R.C., 47 id. 295, Decision No. 15,701 [where principal observed student’s intoxicated state at school prom]; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666 [where principal conducted search of student’s vehicle and marijuana was found]), such is not the case before me.  Petitioner’s meeting with the principal and other school officials, therefore, did not constitute the required informal conference, since petitioner did not have an opportunity to question the complaining witnesses. 

While I understand the principal’s concerns about honoring student witnesses’ requests for confidentiality under circumstances such as those presented here, I note that 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 P.D., 46 Ed Dept Rep 50, Decision No. 15,438; Appeal of B.C. and A.C., 42 id. 395, Decision No. 14,891; Appeal of a Student Suspected of Having a Disability, 40 id. 542, Decision No. 14,552).

In light of this disposition, I need not address the parties’ remaining contentions.  However, nothing herein should be construed as minimizing the gravity of the allegations presented in this appeal or the serious safety, social and emotional issues raised by harassment, bullying and discrimination in public schools.  The behavior of T.M. and the other students involved in the incident is totally unacceptable and cannot be tolerated.  Respondent was justified in suspending T.M. and indeed would have been justified in imposing a more serious penalty.  Discipline aside, respondent needs to take steps to intervene and protect its students from being subjected to harassment, bullying and discrimination.[1]  It is apparent from this record that respondent needs to establish a more positive school culture based on tolerance, so that no student is subjected to a hostile school environment.  I exhort respondent, through instruction in civility, discipline or other interventions, to address the intolerance and discrimination that led to the incident involved in this appeal.


IT IS ORDERED THAT the three-day suspension of petitioner’s daughter from March 21, 2011 to March 23, 2011 be expunged from her record.


[1] I note that, effective July 1, 2012, boards of education must comply with the provisions of Article 2 of the Education Law (Dignity for All Students Act) and, effective July 1, 2013, the amendments thereto (Chapter 102 of the Laws of 2012).