Appeal of S.K. and J.K., on behalf of their son A.K., from action of the Board of Education of the Alexander Central School District regarding student discipline.

Decision No. 17,782

(November 7, 2019)

The Legal Aid Society of Rochester, attorneys for petitioner, Jonathan Falk, Esq., of counsel.

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jennifer M. Schwartzott, Esq., of counsel.

BERLIN., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Alexander Central School District (“respondent”) to impose discipline upon their son, A.K. (“the student”).  The appeal must be sustained in part.

The student was a seventh-grade student at the district’s middle school during the 2018-19 school year.  On January 22, 2019, the student wrote “school + 100 gallons of gas + blowtorch = Boom” on a classroom whiteboard.  The teacher then entered the classroom and asked who had written the message on the whiteboard.  Students in the classroom identified the student as the author.  The student subsequently admitted to his teacher that he wrote the note on the whiteboard.

Later that day, the student was interviewed by the middle school principal, the assistant principal and a school resource officer (“SRO”).  The parties dispute the nature of the SRO’s presence at the interview.  Petitioners maintain that the SRO “interrogated” the student in “full uniform” during the interview, while respondent claims that the SRO only attended the interview in order to listen to the student and determine “whether further steps needed to be taken to minimize the risk of injury to others.”

Following the interview, petitioners met with the assistant principal and discussed the matter.  Before leaving the school building, petitioners were shown a written disciplinary referral and a picture of the statement the student wrote on the whiteboard.

The parties dispute whether the written notice of short-term suspension was hand-delivered to petitioners on January 22, 2019, or whether a copy of the notice, dated January 22, 2019, was received by petitioners on January 23, 2019.  Regardless of the circumstances surrounding its delivery, the parties agree, and the record shows, that the student was suspended from January 23, 2019 through January 30, 2019.

In a letter dated January 29, 2019, the superintendent indicated that a long-term suspension hearing concerning the student’s conduct on January 22, 2019 would be convened on February 1, 2019.  The hearing, presided over by a hearing officer, began on January 22, 2019 and concluded on February 4, 2019 after three days of hearing.  In a written report and recommendation, the hearing officer recommended that the student be found guilty of: (1) engaging in disorderly conduct; and (2) engaging in conduct that endangered the safety, moral health or welfare of others.  The hearing officer further recommended that the student be suspended for five weeks.  The IHO additionally recommended that the student be allowed to return to school early if he enrolled and participated in a counseling program.

The superintendent adopted the hearing officer’s recommendation with respect to guilt and penalty in a letter dated February 5, 2019.  Thus, the superintendent imposed a suspension of five weeks, with an additional four weeks “held in abeyance pending [the student’s] documented enrollment and continuous attendance in an outside counseling program.”  Petitioners appealed the superintendent’s decision to respondent on February 27, 2019, and respondent denied petitioners’ appeal on February 28, 2019.  This appeal ensued.

Petitioners challenge both the short-term and long-term suspensions on appeal.  With respect to the student’s short-term suspension, petitioners allege that they were not afforded legally sufficient written notice.  Petitioners further maintain that written notice was provided after the suspension had been imposed, and “referenced a conference that occurred before the letter’s issuance.”  Petitioners further maintain that a conference was held with the assistant principal, not the principal.  With regard to the long-term suspension, while petitioners concede that the student admitted his guilt to the charged conduct, petitioner asserts that such admission was based upon an illegal interrogation by law enforcement.  In this respect, petitioners contend that the student may have “made admissions to the SRO due to the stress and pressure of [the] uniformed police officer’s interrogation.”  For relief, petitioners request that the student’s short-term and long-term suspensions be expunged from his record.

Respondent claims, among other things, that the decision to impose a short-term suspension was appropriate and should not be expunged.  While respondent admits that the written notice did not apprise petitioners of their rights to an informal conference and to question complaining witnesses, it maintains that petitioners “effectively had an informal conference” with the assistant principal on January 22, 2019.  Moreover, respondent argues that petitioners actually met with the principal, the assistant principal, the SRO and the teacher on January 29, 2019.  Respondent also maintains that its decision to impose a long-term suspension on the student was appropriate and based upon competent and substantial evidence.  Respondent denies that the SRO interrogated the student and asserts that the SRO is not a law enforcement official.

First, I must address a procedural matter.  Petitioners submitted a reply containing, among other things, an affidavit of petitioner S.K. that expounds upon their claims that respondent’s written notice was defective, the respondent violated Board Policy 7330 when S.K. was interrogated, and that S.K.’s short-term and long-term suspensions should be expunged from his record.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

With respect to petitioners’ 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 a 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 time 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., 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 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).

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, the written notice dated January 22, 2019 did not, as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4), apprise petitioner of his right to an informal conference with the principal or his right to question complaining witnesses (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,503; Appeal of S.K., 56 id., Decision No. 17,031).  Although the record indicates that petitioner had the opportunity to discuss the incident with the assistant principal on January 22, 2019, the Commissioner has held that Education Law §3214(3)(d) does not authorize an assistant principal to suspend students (Appeal of C.R., 45 Ed Dept Rep 303, Decision No. 15,330; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883; Appeal of E.R., 40 id. 599, Decision No. 14,565) or conduct an informal conference (Appeal of Stewart, 34 Ed Dept Rep 193, Decision No. 13,279).  Although respondent contends that the Commissioner “excus[ed]” an assistant principal’s role in an informal conference in Appeal of Stewart (34 Ed Dept Rep 193, Decision No. 13,279) as “harmless error,” this is incorrect.  In Appeal of Stewart, a parent challenged the permanent suspension of his son.  The Commissioner stated, with respect to the student’s initial short-term suspension, that “Education Law §3213(3)(d) requires that the building principal, not the assistant principal, conduct the informal conference.”  However, the Commissioner did not order expungement of the short-term suspension because petitioner did not request such relief; as the Commissioner noted, “respondent’s error in this regard is unrelated, however, to [the student’s] suspension for the remainder of his high school career.”[1]  Thus, contrary to respondent’s argument, the Commissioner did not excuse or condone the district’s noncompliance with Education Law §3213(3)(d).

Even assuming, arguendo, that the high school principal had conducted the informal conference, “[h]olding an informal conference with the principal does not excuse the requirement for written notification to students and their parents ... explaining their rights to the conference and the opportunity to question complaining witnesses” prior to the suspension (Appeal of R.J and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059).  In addition, 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 B.B., 49 Ed Dept Rep 253, Decision No. 16,017; Appeal of J.Z., 47 id. 243, Decision No. 15,681; Appeal of P.D., 46 id. 50, Decision No. 15,438).  Therefore, the short-term suspension notice is defective on its face and the student’s short-term suspension must be expunged from his record (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,553; Appeal of a Student with a Disability, 58 id., Decision No. 17,503).

With respect to the long-term suspension, the decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).

Here, petitioners’ son admitted to his teacher and at the hearing that he engaged in the conduct underlying the charges – specifically, writing the language on the classroom whiteboard – and petitioners do not dispute that their son engaged in such conduct.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).  Although the student testified that the “message was merely a joke between friends,” whether the student intended the conduct as a joke or never intended to carry out the threat is irrelevant to a finding of guilt on the charge against him (Saad-El-Din v. Steiner, 101 AD3d 73; Cuff v. Valley Cent. Sch. Dist., 677 F3d 109 [whether a student intended a threat as a joke or never intended to carry it out is irrelevant to a determination of whether a resulting suspension violated his constitutional right to free speech]; see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515; Appeal of R.T. and S.T., 53 id., Decision No. 16,581).

Petitioners nevertheless contend that the student’s admission was coerced because he was interrogated by the SRO.  I need not address this contention, however, where the student admitted that he engaged in the conduct underlying the charge to his teacher prior to any encounter with the SRO (see Appeal of M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; see Appeal of J.D. and J.D., 58 Ed Dept Rep, Decision No. 17,551).[2]  Moreover, even assuming, arguendo, that respondent violated policy 7330 and should have contacted petitioners prior to any questioning of the student, the relief requested by petitioners is that the student’s disciplinary suspension be expunged.  Petitioners have not carried their burden of establishing that expungement of the long-term suspension is the appropriate remedy for noncompliance with policy 7330 (see Appeal of R.C. and N.C., 54 Ed Dept Rep, Decision No. 16,674).

Finally, although petitioners do not directly contest the excessiveness of the penalty imposed, I do not find the penalty so shocking as to justify substitution of my judgment for that of respondent.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909).  Here, the student was suspended for a period of five weeks based upon a statement that could be construed as a bomb threat.  While the student offered letters of apology which state that the student was “sorry for what [he] wrote on the whiteboard” and that “[i]t was wrong of me and I know why,” I do not find a five-week suspension to be excessive given the threatening and disruptive nature of the student’s conduct (see Appeal of A.S., 46 Ed Dept Rep, Decision No. 15,514; Appeal of T.N., 42 id. 235, Decision No. 14,836).

I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent annul and expunge from the student’s record all references to the student’s short-term suspension between January 23, 2019 and January 30, 2019.

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