Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Brewster Central School District regarding student discipline.

Decision No. 17,600

(March 19, 2019)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Brewster Central School District (“respondent”) to suspend his son (“the student”).  The appeal must be sustained.

At all times relevant to this appeal, the student attended eighth grade at respondent’s middle school.  By letter dated December 14, 2017, the middle school principal (“principal”) notified petitioner that, on December 13, 2017, the student “was involved in the use of an illegal controlled substance while on school grounds.”  The letter also advised that “the district ... propos[ed] to suspend [the student] from attendance in school for a period of five days” from December 15 through December 21, 2017.[1]  The letter further noted that the district intended to convene a long-term suspension hearing based upon the student’s conduct.

By letter dated December 15, 2017, the superintendent charged the student with “[d]isrupting the educational process: [u]se of an illegal controlled substance while on school grounds.”  The letter advised petitioner that a long-term suspension hearing would be convened on December 20, 2017 to determine whether an additional period of suspension was warranted.

The long-term suspension hearing, presided over by a hearing officer, convened as scheduled.  At the hearing, the student pled not guilty to the charge against him.

In a written recommendation dated December 29, 2017, the hearing officer recommended that the student be found guilty of the charge against him.  The hearing officer also noted that a manifestation team had conducted a manifestation determination review and determined that the student’s conduct was not a manifestation of his disability.  In light of these determinations, as well as the student’s “long prior disciplinary record,” the hearing officer recommended that the student’s suspension be extended for an additional fifteen days.

By letter dated January 8, 2018, the superintendent notified petitioner that he had adopted the hearing officer’s recommendations regarding guilt and penalty.  By letter dated January 19, 2018, petitioner appealed the superintendent’s decision to respondent.

By letter dated February 21, 2018, respondent’s president notified petitioner that respondent had modified the hearing officer’s findings as follows:

While no competent and substantial evidence was provided that [the student] used an illegal controlled substance on school grounds, [the student] admitted that he was in possession of a “vape” pen, an electronic device capable of containing synthetic tobacco, the use of which is specifically prohibited by ... [respondent’s] Code of Conduct .... Therefore, the Board of Education concludes that [the student] was guilty of possessing a “vape” pen on school grounds....

Notwithstanding such modification, respondent upheld “the disciplinary penalty imposed by the Superintendent” and denied petitioner’s appeal.  This appeal ensued.

Petitioner asserts that he and the student were denied their rights guaranteed by Education Law §3214, including “the right to question the person whom [sic] conducted the investigation.”  Petitioner further asserts that respondent improperly modified the charges against the student in denying his appeal of the student’s short and long-term suspensions.  For relief, petitioner requests that I annul and expunge the student’s short-term and long-term suspensions from his record.

Respondent asserts that the appeal must be dismissed as untimely; that petitioner and the student were afforded all rights guaranteed by law, including their due process rights; and that respondent’s determination of guilt was based upon competent and substantial evidence.

I will first address respondent’s assertion 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).  The record does not indicate when petitioner received respondent’s determination.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, petitioner was required to commence this appeal on or before March 29, 2018.  Petitioner’s affidavit of service indicates that the appeal was commenced by personal service of the petition on March 29, 2018.  Therefore, the appeal is timely.

Turning to petitioner’s challenge to the short-term suspension, 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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W.,  48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).  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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).

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 (see e.g. Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,170; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, although the principal provided petitioner with written notice of the charged misconduct, neither the original nor revised written notice[2] advised petitioner or the student of their right to request an immediate informal conference with the principal or their right to question complaining witnesses.  Moreover, respondent does not argue, and neither the December 14 nor the December 15 written notice stated, that the student was considered a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  Accordingly, the written notices are defective on their face, and I find that respondent violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) by not providing adequate written notice to petitioner and the student (see e.g. Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,578; Appeal of B.B., 49 id. 253, Decision No. 16,017; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

Additionally, it appears that the written notices were both sent by regular mail.  As indicated above, 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, 50 Ed Dept Rep, Decision No. 16,170; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).  The short-term suspension must therefore be expunged from the student’s record.

Turning to the student’s long-term suspension, petitioner alleges, inter alia, that respondent modified the charges against the student in affirming the disciplinary penalty imposed by the superintendent.  The charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing” (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).

Here, I agree with petitioner that respondent erred by finding the student guilty of a materially different charge which it did not raise at, or at any time prior to, the long-term suspension hearing.  In the December 15, 2017 written notice of the long-term suspension hearing, the district charged the student with a single charge; namely, “use of an illegal controlled substance while on school grounds.”  Respondent explicitly found in its February 21, 2018 written determination that the district did not introduce competent and substantial evidence to support the charge.  However, rather than expunge the student’s long-term suspension, respondent determined that the record supported a finding of guilt on a completely different charge: possession of a vaping device on school grounds.

I find that respondent’s modification of the charges against the student was material, and that such modification violated petitioner’s and the student’s rights to a fair hearing pursuant to Education Law §3214(3)(c)(1).  The charges of drug use on school grounds and possession of a “‘vape’ pen” on school grounds are qualitatively different and, thus, would require different kinds of proof to demonstrate guilt or innocence.[3]  The district charged the student with “use of an illegal controlled substance while on school grounds,” not possession of a vaping device, the hearing officer and superintendent found the student guilty of this charge, and the district must be held to the language of this charge (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,560; Appeal of J.M., 57 id., Decision No. 17,335; Appeal of A.F. and T.P., 56 id., Decision No. 16,997; cf. Appeal of C.B.R., 57 id., Decision No. 17,211).  In this regard, I note that Education Law §3214(3)(c)(1) specifically states that the “board may adopt in whole or in part the decision of the superintendent....”

In its memorandum of law, respondent argues that, as the superintendent found, the record supports a finding of guilt as to the charge of use of an illegal controlled substance while on school grounds.  Respondent, however, is foreclosed from making this argument because it explicitly reached the opposite conclusion in denying petitioner’s appeal.  Education Law §3214(3)(c)(1) provides that, following a long-term suspension hearing, “[a]n appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.”  Thus, respondent was required to issue a decision on petitioner’s appeal, and I find that it is bound by such determination in a subsequent appeal pursuant to Education Law §310.  Therefore, based upon respondent’s violation of Education Law §3214(3)(c)(1) described herein, I find that the student’s long-term suspension must be expunged from his record.

While respondent improperly found the student guilty of conduct with which it did not charge him, nothing in this decision should be interpreted as a finding that the student’s admitted possession of a vaping device – which is a serious issue in public schools - was appropriate or consistent with respondent’s code of conduct.  Respondent presumably could have charged the student with possession of a vaping device but chose, instead, to charge him with use of an illegal controlled substance on school grounds – a charge which respondent has admitted the district failed to prove by competent and substantial evidence (see Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,335).

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent annul and expunge from the student’s record the short-term and long-term suspensions of the student described herein.[4]

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