Decision No. 17,985
Appeal of N.V.D., on behalf of her daughter, from action of the Board of Education of the Williamsville Central School District regarding student discipline.
Decision No. 17,985
(April 22, 2021)
Harris Beach PLLC, attorneys for respondent, Tracie L. Lopardi, Esq., of counsel
ROSA., Commissioner.--Petitioner challenges the ability of the Board of Education of the Williamsville Central School District (“respondent”) to impose a suspension upon her daughter (the “student”) beyond the original expiration date of the suspension. The appeal must be sustained.
During the 2018-2019 school year, the student attended school in respondent’s district. By letter dated June 5, 2019, the principal of the student’s school notified petitioner that he had decided to suspend the student for five days for an incident that occurred on June 3, 2019. By notice dated June 6, 2019, respondent’s superintendent advised petitioner that the district would convene a hearing to determine whether the student should receive an additional period of suspension. The long-term suspension hearing ultimately took place on October 4, 2019. In a decision dated October 21, 2019, the superintendent found the student guilty of the charges against her and “suspended [her] through Friday, May 1, 2020.” The superintendent’s decision stated, in relevant part, that, “[i]f [the student] enroll[ed] in a school not operated by [respondent], ... such time [would] not be counted as serving her suspension period.” The record reflects that the student completed the remainder of the 2019-2020 school year at a nonpublic school; however, it is unclear when the student enrolled in such nonpublic school.
Petitioner appealed the superintendent’s decision to respondent, arguing that the suspension was “too severe” and that the student should not be required to serve the suspension if and when she sought to re-enroll in respondent’s district. Respondent denied petitioner’s appeal and affirmed the superintendent’s determination by letter dated February 14, 2020. This appeal ensued. On July 23, 2020, petitioner’s request for interim relief was granted, thus preventing respondent “from imposing any suspension [upon the student] during the 2020-2021 school year,” pending a decision on the merits.
Petitioner challenges respondent’s authority to hold the student’s suspension in abeyance during her enrollment in the nonpublic school and, thus, suspend the student upon her re-enrollment in the district. Petitioner argues that neither the Education Law nor the district’s code of conduct delegates such authority where the term of the suspension has expired. Petitioner seeks a determination precluding respondent from imposing the student’s long-term suspension beyond its expiration on May 1, 2020.
Respondent contends, among other things, that the student did not “serve” her suspension because she attended the nonpublic school during the term of her suspension. Respondent maintains that public policy dictates that the student “cannot bypass her suspension by temporarily enrolling in a different school.”
First, I must address the scope of my review in this appeal. The sole issue presented by petitioner on appeal is respondent’s ability to impose the student’s long-term suspension after May 1, 2020 – the last day of the suspension pursuant to the superintendent’s October 21, 2019 determination. Therefore, although respondent addresses the student’s guilt and the appropriateness of the 122-day long-term suspension, those issues are not before me and I will not address them herein.
Turning to the merits, Education Law § 3214 (3) (a) authorizes a board of education, board of trustees, sole trustee, superintendent of schools, district superintendent, or principal of a school to suspend a “pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.” The Commissioner has recognized that, based on the plain language of Education Law § 3214 (3) (a), a district’s authority to suspend a student is dependent upon the student’s conduct causing a disruption, or risk of disruption, to the school environment and educative process (see Appeal of N.R., 60 Ed Dept Rep, Decision No. 17,913; Appeal of a Student with a Disability, 58 id., Decision No. 17,560; Appeals of A.F. and T.P., 56 id., Decision No. 16,997). Where a district suspends a pupil of compulsory attendance age, the district must take “immediate steps ... for [the pupil’s] attendance upon instruction elsewhere” (Education Law § 3214  [e]).
The novel issue to be decided in this appeal is whether a school district may hold a student’s suspension in abeyance if the student disenrolls from its schools and subsequently reimpose the suspension upon the student if the student re-enrolls. For the reasons below, I conclude that it may not.
Initially, I note that Education Law § 3214 does not contemplate any authority of a school district to hold a former student’s suspension in abeyance indefinitely until such time as the student re-enrolls in its district, regardless of how much time has passed since the initial misconduct for which the student was suspended. Nevertheless, respondent asserts that the student has “bypass[ed] her imposed discipline” because “there is no evidence” that she “served her imposed suspension while enrolled at the nonpublic school.” The suggestion that the nonpublic school should have enforced the suspension imposed by respondent is improper. As the Commissioner has previously explained, “when a student who has been suspended in one district moves to another district, that district cannot simply enforce the prior suspension without determining whether the student’s conduct violates its code of conduct” (Appeal of a Student with a Disability, 49 Ed Dept Rep 204, Decision No. 16,002). The same principle applies when a student enrolls in a nonpublic school during a period of suspension. As noted above, a school district’s authority to suspend a student requires that the student’s misconduct resulted in a disruption – whether actual or potential – to the school environment or educative process. Because the school environment and educative process differ between schools, any disruption that originally resulted from a student’s misconduct at one school does not necessarily carry over to a new school in which the student enrolls; thus, the suspension itself cannot automatically transfer.
Similarly, although respondent asserts that the student will have impermissibly evaded punishment unless she is required to “serve” her long-term suspension upon re-enrolling in the district, this contention erroneously rests upon the assumption that a suspension is or should be punitive, which is inconsistent with Education Law § 3214 (3) and educational policy.
New York State has committed to minimizing punitive suspension practices as part of its Every Student Succeeds Act (“ESSA”) plan. ESSA mandates the creation of State and district-level plans to avoid “the overuse of discipline practices that remove students from the classroom” (20 USC §§ 6311 [g]  [c] [ii], 6312 [b] ). New York State’s approved plan recognized several goals for school districts, such as “reduc[ing] the overuse of punitive and exclusionary responses to student misbehavior.” This policy is further embodied by the Commissioner’s regulations, which require that codes of conduct contain disciplinary measures that “incorporate a progressive model of student discipline” and include “measured, balanced and age-appropriate remedies and procedures that make appropriate use of prevention, education, intervention and discipline” (8 NYCRR 100.2 [l]  [h]).
Furthermore, the Board of Regents has “reaffirm[ed] its commitment” to “reducing dependence on exclusionary school discipline.” In support of this resolution, the Board of Regents cited the following research-based findings:
- racial disparities in student discipline rates persist in New York State and the nation;
- students with disabilities and lesbian, gay, bisexual, transgender and questioning (LGBTQ) students are also at higher risk for suspension and expulsion;
- suspension can be the first step in a series of events leading to lower student academic achievement, higher truancy rates, higher dropout rates, and higher rates of contact with the juvenile and adult justice systems;
- the use of exclusionary discipline (i.e., removing students from their learning environment) adversely impacts school climate overall, fails to make students feel safer, and can have a negative effect on other students’ academic performance and achievement;
- the quality of the school climate is one of the most critical predictive factors in any school’s capacity to promote student achievement; and
- exclusionary school discipline does not effectively manage student behavior and the American Psychological Association has concluded that “zero-tolerance policies” fail to make schools safer.
In addition, joint guidance issued by the State Education Department and the New York State Office of the Attorney General on August 29, 2019 “urge[d] all districts to fully evaluate whether they over-rely on exclusion as a form of discipline.” This guidance cautioned that “[o]ver-reliance on exclusionary discipline and disparities in its use leave school districts in New York vulnerable to liability under a host of federal and state laws ....”
Based on the above, I find that the superintendent’s determination, as affirmed by respondent, is invalid to the extent it states that any time the student spent “enroll[ed] in a school not operated by [respondent] ... w[ould] not be counted as serving her suspension period.” It would be contrary to Education Law § 3214 (3) (a) and the educational policy of the State of New York to permit respondent to hold the student’s suspension in abeyance while she attended the nonpublic school and then impose it upon her re-enrollment in respondent’s district – well beyond the suspension’s expiration date of May 1, 2020. Although respondent characterizes the student’s enrollment in the nonpublic school as an attempt “to bypass her suspension,” I note that the student’s enrollment in nonpublic school did, in fact, remove her from her school environment in respondent’s district during the period of her suspension, which is the purpose of imposing an out-of-school suspension pursuant to Education Law § 3214 (3) (a). Moreover, the student is of compulsory school age and was entitled to receive instruction during the period of her suspension (Education Law § 3214  [e]).
Respondent additionally argues that allowing the student to re-enroll in respondent’s district without serving an additional period of suspension “would result in equitable disparities” because students “from less privileged backgrounds” do not have the option to enroll in a nonpublic school. Although I appreciate respondent’s concern, I find this contention to be speculative. As an initial matter, although a nonpublic school is not required to enforce a suspension imposed by a public school, as explained above, it is not precluded from doing so. Thus, there is no reason to assume that a student’s enrollment in a nonpublic school would necessarily permit her or him to evade the consequences of her or his actions, as respondent suggests. Furthermore, as the record in this case demonstrates, a parent’s decision to remove a student from school and enroll her or him in a new educational environment, whether temporarily or permanently, is likely based on numerous considerations and not taken lightly. Thus, a student’s enrollment in a different school is not solely or even necessarily a matter of the parent’s finances.
Finally, respondent’s contention that the Commissioner upheld a similarly stayed suspension in Appeal of D.B. (58 Ed Dept Rep, Decision No. 17,244) is without merit. While that decision indicated that a school district intended a student’s long-term suspension “to be served prior to [his] re-enrollment (if any),” this condition was merely recited in the factual background of the decision. The petitioner in that appeal sought expungement of his child’s suspension but did not challenge the appropriateness of the respondent school district holding the suspension in abeyance, nor did the Commissioner issue any rulings thereon. Because only issues decided on the merits carry precedential value (see e.g. Appeal of Cohen, 60 Ed Dept Rep, Decision No. 17,863; Appeal of D.K., 58 id., Decision No. 17,539), I do not find respondent’s reliance on Appeal of D.B. (58 Ed Dept Rep, Decision No. 17,244) persuasive.
Based on the foregoing, I conclude that respondent’s proposed enforcement of the student’s long-term suspension beyond its expiration is unnecessarily punitive, contrary to law, and inconsistent with sound educational policy.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent is enjoined from further imposition of the long-term suspension imposed upon the student by the superintendent’s October 21, 2019 determination, as affirmed by respondent, which expired on May 1, 2020.
END OF FILE
 New York State Department of Education, ESSA Plan (Jan. 12, 2018), available at http://www.nysed.gov/sites/nysed/files/programs/essa/nys-essa-plan.pdf (last accessed Apr. 14, 2021).
 New York State Board of Regents, Resolution (January 14, 2019), available at https://www.regents.nysed.gov/sites/regents/files/Resolution_0.pdf (last accessed Mar. 7, 2021).