Appeal of P.B., on behalf of her daughter M.B., from action of the Board of Education of the City School District of the City of Saratoga Springs regarding student discipline.

Decision No. 16,553

(September 26, 2013)

Anderson Byrne LLC, attorneys for petitioner, ElizabethByrne-Chartrand, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondent, Paul M.Aloy, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Saratoga Springs (“respondent”) to suspend her daughter, M.B., for four days. The appeal must be sustained.

On Friday, March 4, 2011, M.B. attended a dance held at respondent’s high school. Based on information received by a fellow student, respondent’s assistant principal asked

M.B. if she had been drinking alcoholic beverages. Although M.B. denied drinking while at the dance, she admitted to having consumed an alcoholic beverage at a friend’s house prior to attending the dance.

Based on this admission, on Saturday, March 5, 2011,respondent’s high school principal, Brett Miller (“Principal Miller”), contacted petitioner and advised her that M.B. was being suspended from school for four days, commencing Monday, March 7, 2011. Principal Miller also advised petitioner that she could schedule an informal conference with him to discuss the matter.

Due to inclement weather conditions, school was cancelled on March 7, 2011, and Principal Miller decided to commence M.B.’s suspension on Tuesday, March 8, 2011. By letter dated March 7, 2011, but postmarked March 8, 2011,Principal Miller notified petitioner that M.B. was being suspended for four days, commencing on March 8, 2011, for “an incident ... categorized as use of alcohol.” The letter further advised petitioner of her right to request an immediate informal conference and to have any witness present to “gain information about the incident.” According to petitioner, she received the letter on the afternoon of March 9, 2011.

An informal conference was held on March 9, 2011 at noon. Petitioner appeared at the informal conference with her attorney. Although Principal Miller commenced the conference, he then informed petitioner that, upon advice of counsel, petitioner could not have her attorney present. Principal Miller advised petitioner that she could proceed without her attorney, but petitioner declined to do so, and the conference was ended.

By letter dated March 10, 2011, petitioner, through her attorney, requested an informal conference with Principal Miller to discuss the incident and to question witnesses, including the assistant principal and any other teacher or chaperone at the dance who witnessed M.B.’s behavior. The attorney also requested that respondent provide any “surveillance tapes, videos and photos of the event....” Additionally, the attorney claimed that written notice and due process were required before suspending M.B. from school, that petitioner was not waiving any claims regarding that issue, and that M.B. was not intoxicated at the dance to warrant any disciplinary action.

By letter dated March 24, 2011, respondent’s superintendent of schools, Janice M. White (“Superintendent White”), responded to petitioner’s request for an informal conference. Rather than consider the letter a request for an informal conference, Superintendent White decided to treat it as “an appeal of [M.B.’s] suspension.” Superintendent White found that the district provided due process to petitioner because the principal contacted petitioner by telephone on March 5, 2011 and told her she could schedule a meeting with him on Monday, March 7, 2011 to further discuss the suspension and because the principal was available for an informal conference on March 7 and 8, 2011. The superintendent stated that it was petitioner who scheduled the conference for March 9, 2011, after M.B.’s suspension had commenced. She further noted that the informal conference was held on March 9, 2011, but that petitioner declined to participate in the conference without her attorney.

In her letter, Superintendent White stated that Principal Miller commenced the suspension on March 8, 2011 because he believed M.B.’s presence in school would “cause an ongoing threat of disruption to the academic process.” Superintendent White confirmed the finding that M.B. violated the district’s code of conduct warranting suspension. Superintendent White upheld the four-day suspension.

By letter dated April 7, 2011, petitioner appealed Superintendent White’s determination to respondent. By letter dated May 4, 2011, respondent upheld Superintendent White’s decision suspending M.B. for four days. This appeal ensued.

Petitioner contends that respondent failed to provide timely written notice of the suspension, including notice of the right to an informal conference and the opportunity to question complaining witnesses, prior to the commencement of M.B.’s suspension on March 8, 2011. Petitioner asserts that respondent failed to provide an opportunity for an informal conference or to question complaining witnesses prior to M.B.’s suspension, and that her presence in school did not pose a continuing danger or an ongoing threat to the academic process. Petitioner also contends that M.B. was not under the influence of alcohol at the dance in violation of the district’s code of conduct. Petitioner asserts that respondent’s code of conduct is unconstitutionally vague. Petitioner seeks expungement of the four-day suspension.

Respondent contends that petitioner has failed to state a claim or a clear legal right to the relief requested. Respondent maintains that it afforded appropriate due process by providing petitioner with advance notice of the suspension by telephone, by providing written notice as soon as reasonably practicable thereafter, and by affording petitioner an opportunity for an informal conference on March 9, 2011, despite denying her attorney permission to attend. Respondent further contends that written notice was not required to be provided prior to M.B.’s suspension because her presence in school would have caused an ongoing threat of disruption to the academic process. Respondent asserts that the record supports its determination that M.B. violated the code of conduct and the suspension imposed was reasonable. Finally, respondent asserts that the appeal must be dismissed because the petition is not properly verified.

I will first address the procedural matter. Section

275.5 of the Commissioner’s regulations requires that all pleadings be verified by at least one of the petitioners. Although the petition initially served upon respondent contained an unsigned verification, upon discovery by petitioner’s counsel, a properly verified petition was promptly served and filed. In this case, the defect was cured and respondent does not plead any prejudice resulting from this late submission of petitioner’s verification, nor do I find any such prejudice. I have previously declined

to dismiss a petition that was not verified by petitioner as initially submitted where the defect is cured and thereis no evidence of prejudice to the opposing party (see Appeal of P.R. and C.R., 41 Ed Dept Rep 48, Decision No.14,611; Appeal of Christe, 40 id. 412, Decision No. 14,514). Accordingly, I decline to dismiss the appeal on this basis.

Turning to the merits, 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], 8NYCRR §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).

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 4

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 (see

e.g. Appeal of a Student with a Disability, 47 Ed Dept Rep19, Decision No. 15,608). 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 J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

Petitioner contends, and respondent does not dispute, that she did not receive written notice of the suspension, which began on March 8, until March 9, 2011. The notice had been sent on March 8 by regular mail. The parties met on March 9, 2011 at noon. However, petitioner had not yet received the notice, and the suspension had already commenced.

Respondent argues that the student’s presence in the school posed an ongoing threat of disruption to the academic process and, therefore, the notice and opportunity for an informal conference need only occur as soon after the suspension as was reasonably practicable, but not necessarily before the suspension. I disagree. At this juncture, the principal states that he was concerned that M.B.’s presence at school would present a significant threat of disruption to the academic process, given the number of students suspended for the same or similar charge. However, he made no mention of that concern in his March 5, 2011 telephone call to petitioner. Nor did he cite this concern in his March 7, 2011 written notice of M.B.’s suspension. It was only after petitioner’s attorney’s March 10, 2011 letter challenging the lack of adequate notice that this concern was first articulated by district staff. I also note that respondent admits that

M.B. was not engaged in any disruptive behavior at the dance. It appears from the record that she was cooperative and orderly in addressing the matter with the assistant principal and other staff. On this record, I find respondent’s claim that M.B.’s presence in school posed an ongoing threat of disruption to the academic process belied by the evidence.

Moreover, even if I were to agree that the student’s presence posed the requisite threat, requiring that the informal conference be held as soon as reasonably practicable after imposition of the suspension, in this case an informal conference was never held, even after

petitioner received written notice of her right to such conference. The record indicates that the principal’s March 7, 2011 letter was mailed by regular mail on March 8,2011 and that petitioner did not receive it until the afternoon of March 9, 2011 – subsequent to her previously scheduled meeting earlier that day. As noted above, sending the written notice to petitioner by regular mail was inadequate. In addition, upon receipt of the notice, petitioner, through her attorney, requested an informal conference by letter dated March 10, 2011. Instead of affording petitioner the requested informal conference, however, the superintendent treated the March 10, 2011letter as an “appeal” of the suspension and, thereafter, denied the appeal. Consequently, no required informal conference following proper notice has been held in this instance.

Accordingly, I find that petitioner was not given the required prior written notice or opportunity for an informal conference, and the short term suspension of March8 through March 11, 2011 must be expunged from the student’s records.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent expunge all references of M.B.’s suspension from March 8, 2011 through March 11,2011 from her records. END OF FILE