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Decision No. 17,846

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

Decision No. 17,846

(June 10, 2020)

Law Offices of Douglas A. Spencer, PLLC, attorneys for petitioners, Douglas A. Spencer, Esq., of counsel

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

Tahoe., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Kings Park Central School District (“respondent”) to impose discipline upon their son (the “student”).  The appeal must be sustained.

The student attends an elementary school in respondent’s district.  According to respondent, the student engaged in multiple instances of disruptive behavior during the school day on June 18, 2019.  After the conclusion of the school day, the principal of the elementary school called the student’s father to inform him that the student would be suspended for two days.  According to an affidavit submitted by the principal, the student’s father was “aggressive on the phone, repeatedly [hung] up on [him], and refus[ed] to listen as [he] explained ... [the student’s] behaviors.”  The principal further indicates that he informed the student’s father that a letter would be “hand[-]delivered to him,” which would “set forth the proposed suspension and the right to an informal conference.”  According to the principal, the student’s father stated “that he would not allow anyone to come onto his property to deliver the letter.”

The principal states that a school district security guard attempted to hand-deliver the letter at approximately 3:45 p.m. on the afternoon of June 18, 2019.  The principal asserts that, when the security guard attempted to deliver the letter, however, the student’s father “went to the door[,] made eye contact with [the security guard] and walked away, refusing to accept the letter.”  The security guard eventually left the letter in the mailbox.  The record contains a copy of this letter, which is dated June 18, 2019 and indicates that the student was “hereby suspended from attending school for two days,” June 19 and 20, 2019, “for the reason of repeated disruptive behavior and engaging in lewd and inappropriate behavior.”  The notice further indicated that petitioners had “the right to request an immediate informal conference with the complaining witness and [the principal],” at which they could “ask appropriate questions ... and present [their] version of the facts.”

In the evening of June 18, 2019, the principal emailed petitioners and indicated that he was “willing to meet” with them “tomorrow morning regarding the incidents of today.”  The student’s mother responded the morning of June 19, 2019, stating that the principal’s offer to meet was “not acceptable” due to the short notice.  The student’s mother further indicated that she “would like” the district’s superintendent of schools to be “involved,” because the principal did not speak to the student prior to determining the punishment.  It does not appear from the record that an informal conference concerning the student’s suspension occurred.  Petitioners appealed the student’s short-term suspension to respondent, which denied petitioners’ appeal and upheld the suspension by letter dated July 10, 2019.  This appeal ensued.

Petitioners contend that the short-term suspension must be expunged from the student’s record because they were not informed of their rights to an informal conference and to question complaining witnesses prior to imposition of the short-term suspension.  Petitioners additionally contend that the district “failed to properly investigate the alleged incident.”  Petitioners seek expungement of the suspension from the student’s record.

Respondent argues, inter alia, that its determination to suspend the student for two days was neither arbitrary nor capricious.  With respect to the written notice of the student’s suspension, respondent contends that it “provide[d] written notification within 24 hours of the incident,” that the “charged conduct interfered with the operations of the [s]chool [d]istrict,” and that petitioners received “legally compliant procedural due process.”

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).

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).

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).

On this record, petitioners have met their burden of proving that respondent failed to provide them with legally sufficient written notice prior to imposition of the student’s suspension.  Initially, while respondent suggests on appeal that the two-day suspension was merely “proposed” on June 18, 2019, this argument is contradicted by the plain language of the written notice.  As indicated above, the notice – which is dated June 18, 2019 and which respondent attempted to hand-deliver at 3:45 p.m. on that day – indicates that the student was “hereby suspended from attending school for two days” and that “[t]he dates of suspension [would] be June 19, 2019 and June 20, 2019.”   Based on the plain language of this notice, I find that respondent reached a decision to suspend the student before offering petitioners the opportunity for an informal conference with the principal, at which they could question complaining witnesses (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,553).  The written notice indicated that the student had already been suspended, in violation of 8 NYCRR §100.2(l)(4).  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]; cf. Appeal of C.B., 59 Ed Dept Rep, Decision No. 17,840). 

Although the June 18, 2019 written notice offered petitioners “an immediate informal conference” at which they could question complaining witnesses and present their version of events, the notice failed to advise petitioners that they had a right to such conference “prior to [the] suspension” (Education Law §3214[3][b][1]; see 8 NYCRR §100.2[l][4]).  Additionally, while the principal indicated by email that he was willing to meet with petitioner on the morning of June 19, 2019, he did not indicate that the student’s suspension would be postponed pending the outcome of such a meeting.  These actions defeated the purpose of the written notice requirement; namely, to afford the principal the opportunity to decide whether the 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, as respondent recognizes, the principal’s telephone communications with petitioners did not constitute sufficient notice of the short-term suspension.  As indicated above, oral communication with a parent regarding a suspension is not 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).

Respondent suggests on appeal that its failure to offer an informal conference prior to the suspension should be excused because the student’s conduct “interfered with the operations of the [s]chool [d]istrict.”  Notably, however, the June 18, 2019 notice did not indicate, as required, that the student’s “presence in the school pose[d] a continuing danger to persons or property or an ongoing threat of disruption to the academic process” (Education Law §3214[3][b][1]; see 8 NYCRR §100.2[l][4]).  Accordingly, respondent is foreclosed from raising this argument on appeal, and petitioners should have received an opportunity to participate in an informal conference prior to the suspension (see e.g. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,553; Appeal of L.Z. and M.S., 56 id., Decision No. 17,034; Appeal of L.L., 51 id., Decision No. 16,334).

Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) unambiguously require provision of legally sufficient written notice prior to a decision to suspend a student, unless the student’s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  As outlined above, the principal’s June 18, 2019 notice failed to satisfy these requirements.  Moreover, given the June 19, 2019 email that the student’s mother sent to the principal, wherein she requested a conference with the principal and the superintendent,[1] I cannot conclude that petitioners waived their rights to an informal conference or to question complaining witnesses.

For all of the above reasons, I find that respondent failed to comply with the requirements of Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) in suspending the student for two days.  Therefore, any reference to the short-term 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.

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

END OF FILE

 

[1] I agree with respondent, however, that nothing in Education Law §3214 or 8 NYCRR §100.2(l) would require the attendance of the superintendent at the informal conference.