Appeal of C.B., on behalf of her son D.B., from action of the Board of Education of the Sachem Central School District regarding student discipline.

Decision No. 17,840

(May 6, 2020)

Robinson & Associates, P.C., attorneys for petitioner, Kenneth L. Robinson, Esq., of counsel.

Ingerman Smith LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Sachem Central School District (“respondent”) to impose discipline on her son (“the student”).  The appeal must be sustained in part.

During the 2019-2020 school year, the student attended respondent’s high school.  On October 2, 2019, the student was involved in an incident in a hallway of the high school.[1]  In an affidavit submitted with this appeal, the principal of respondent’s high school (“principal”) states that, on that same day, petitioner and the student’s sister arrived at school to pick up the student.  The principal indicates that the student had not yet been suspended at that time.  The principal further indicates that an informal conference was scheduled for the following day, October 3, 2019, during first period.  The principal also states that the informal conference convened as scheduled, and that, upon its conclusion, she determined that the student would serve a suspension consisting of two days of out-of-school suspension and three days of in-school suspension.  The principal further states that “a letter was generated and handed to [petitioner] after the meeting which set forth that the student was to be suspended for five days as a result of fighting with another student in the hallway on October 2, 2019.”  The letter indicated that the student would serve the out-of-school suspension on October 3 and 4, 2019, and the in-school suspension on October 7, 8, and 10, 2019.  Finally, the principal states that “after departing the meeting, [p]etitioner and [the student] reentered my office with [the student’s father] and we proceeded to have a second informal conference ....  Petitioner and [the student’s father] used this opportunity to yell at [the two assistant principals] and myself.”

Petitioner appealed the student’s suspension to the superintendent who, in a letter dated October 31, 2019, upheld the suspensions.  Petitioner then appealed to respondent which, in a letter dated November 7, 2019, upheld the suspensions.  This appeal ensued.

Petitioner argues that the principal suspended the student before petitioner was informed of her rights to an informal conference and to question complaining witnesses.  Petitioner further complains that she was not advised of her right to appeal the student’s short-term suspension to the superintendent.  Petitioner also argues that respondent did not consider “the reasons why [the student] found himself in an incident” and asserts that her son was subjected to bullying and cyber-bullying, which are prohibited by the code of conduct.  Petitioner requests that the student’s suspensions be expunged from the student’s record.

Respondent argues that the petition must be dismissed for failure to state a claim upon which relief may be granted.  Respondent asserts that it complied with all applicable rules and regulations and its code of conduct.

I must first address two procedural matters.  Petitioner’s memorandum of law cannot be considered because it was not properly served.  Petitioner was required to serve her memorandum of law in accordance with section 275.8(b) of the Commissioner’s regulations, which provides that “[a]ll subsequent pleadings and papers shall be served ... by United States mail, by private express delivery service or by personal service ....”  Petitioner’s affidavit of service indicates that the memorandum of law was served via email, which is not a method of service permitted by the regulation (8 NYCRR 275.8[a]).  Therefore, I have not considered petitioner’s memorandum of law.

I am also unable to consider respondent’s memorandum of law because it is untimely.  Pursuant to section 276.4 of the Commissioner’s regulations, respondent was required to serve its memorandum of law within 30 days after service of the answer or 20 days after service of the reply, whichever is later.  Respondent’s answer was served by mail on January 9, 2020 and petitioner did not submit a reply.  Because the answer was served upon petitioner by mail, the date of mailing and the four days subsequent thereto are excluded in the computation of the 30-day period in which respondent was required to serve and file its memorandum of law (8 NYCRR §276.4[a]).  Respondent did not serve its memorandum of law until February 12, 2020, two days late.  Moreover, respondent does not set forth good cause for the delay or explain how the memorandum of law is necessary to resolve the issues presented in this appeal (8 NYCRR §276.4[a]).  Therefore, I have not considered respondent’s memorandum of law.

Turning to the merits of the student’s in-school suspension, in-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; Appeal of D.K., 48 id. 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; Appeal of D.K., 48 id. 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700).

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).

Petitioner has not met her burden of proving that the principal did not offer her an opportunity to discuss the student’s conduct prior to imposing the in-school suspension (see Appeal of M.B., 57 Ed Dept Rep, Decision No. 17, 304; Appeal of Denis, 40 id. 306, Decision No. 14,487).  The petition merely alleges that the student’s suspension “commenced on October 2, 2019, prior to the date of the [p]rincipal’s letter and prior to the informal conference.”  However, the principal indicates that she, two assistant principals, petitioner and the student met during first period on October 3, 2019, and that the administrators explained to petitioner and the student that the student was “a willing participant in the fight and that he made no attempt to about or stop the fight once it began.”  Further, the principal indicates that petitioner had an opportunity to ask questions during this meeting, but instead “yelled” at them.  Petitioner submits no reply to rebut the principal’s contentions.  Therefore, petitioner has not met her burden of proving that she was not afforded an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline.  Consequently, I decline to expunge the student’s in-school suspension from his record.

With respect 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., 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).

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).

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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

On this record, petitioner has sufficiently demonstrated that respondent failed to provide the student with legally sufficient written notice prior to imposition of the out-of-school suspension.  By the principal’s own admission, the written notice of suspension “was not handed to the [p]etitioner prior to the meeting,” but was instead “issued after the informal conference.”  Although respondent contends that it held a “second informal conference,” the principal states that she had already decided to suspend the student prior to this second conference.[2]  This is corroborated by the language of the written notice, which indicates that the student “has been suspended” – i.e., suspended prior to issuance of the notice.  Thus, respondent failed to provide the student with written notice prior to reaching a decision to suspend him from instruction.  This defeated the purpose of the written notice requirement; namely, to afford 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).  Moreover, in addition to the principal’s admission, the plain language of the written notice indicated that the student had already been suspended, which violates 8 NYCRR §100.2(l)(4) (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,553).  That regulation provides that, when imposing a short-term suspension, “school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be suspended from school” 8 NYCRR §100.2[l][4]) (emphasis added).

Finally, petitioner’s claim that she was not informed of her right to appeal the above suspensions must be dismissed for failure to state a claim upon which relief may be granted.  The record does not contain a copy of respondent’s policies concerning disciplinary appeal procedures; as such, it is unclear whether an appeal to the superintendent is permitted or required following the imposition of an in-school or out-of-school suspension of five days or less.  But even assuming that such an appeal is required, any failure to inform petitioner of this requirement would be harmless under the circumstances because petitioner, in fact, appealed to the superintendent and the board, and the superintendent and board issued written decisions resolving such appeals.

For all of the above reasons, any reference to the out-of-school suspension at issue in this appeal must be expunged from the student’s record.  In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent annul and expunge from the student’s record any reference to the out-of-school suspension at issue in this appeal.

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