Decision No. 18,068
Appeal of M.W., on behalf of her child, from action of the Board of Education of the Greenport Union Free School District regarding student discipline.
Decision No. 18,068
January 13, 2022
Thivierge & Rothberg, P.C., attorneys for petitioner, Christina D. Thivierge, Esq., of counsel
Ingerman Smith, LLP, attorneys for respondent, Christopher Venator, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Greenport Union Free School District (“respondent”) to suspend her child (“the student”). The appeal must be sustained.
At all times described herein, the student attended respondent’s high school; he also received special education pursuant to the Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law. In a letter dated November 19, 2020, the high school principal proposed that the student be suspended for five days for sending inappropriate electronic communications. In a separate letter dated November 19, 2020, respondent’s superintendent informed petitioner that the district would convene a long-term suspension hearing concerning this conduct.
On December 1, 2020, respondent conducted a manifestation determination review (“MDR”), which concluded that the student’s conduct was not a manifestation of his disability.
Respondent convened the long-term suspension hearing on December 4, 2020. At the hearing, the superintendent found the student guilty of the charges against him. In a decision dated that same day, the superintendent imposed a 30-day suspension, from December 2, 2020 through January 22, 2021. Petitioner appealed this decision to respondent, which denied her appeal by letter dated January 21, 2021. This appeal ensued.
Petitioner alleges that respondent predetermined the outcome of the long-term suspension hearing by holding the MDR prior to a determination of the student’s guilt. Petitioner further alleges that the district did not provide sufficient notice of the charges, failed to provide material evidence to petitioner, and improperly prohibited cross-examination of another student. Petitioner also claims that the long-term suspension was excessive because the underlying conduct was a manifestation of the student’s disability. For relief, petitioner requests expungement of the suspensions from the student’s record.
Respondent contends that the student admitted his guilt as to the charges against him and that the penalty was appropriate.
Petitioner’s challenge to the MDR team’s conclusion must be dismissed for lack of jurisdiction. The manifestation review process derives from IDEA (20 USC § 1415 [k]; 34 CFR 300.530-300.537; Honig v Doe, 484 US 305, 325, n 8 ; see also Education Law §§ 3214  [g]; 4404 ; 8 NYCRR Part 201). Thus, if a parent disagrees with the decision of an MDR team, she or he must appeal using IDEA’s due process procedures. This may take the form of an expedited impartial hearing before an impartial hearing officer (IHO) (20 USC § 1415 [k]  [A]; 34 CFR 300.532 [c]; 8 NYCRR 201.11 [a] -) or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations (see generally 34 CFR 300.152). An adverse determination of an IHO may be appealed to a State Review Officer pursuant to Education Law § 4404 (2) (see e.g. Application of a Student with a Disability, Decision No. 16-041, available at [https://www.sro.nysed.gov/sites/sro/files/Decisions/2016/pdfversion/16-0...). Therefore, petitioner’s challenge to the conclusion of the MDR team cannot be entertained in this forum (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,990).
Nevertheless, petitioner’s challenge to the student’s long-term suspension must be sustained. No student may be suspended from instruction for six or more days until a school district proves disciplinary charges against her or him at a “fair hearing” (Education Law § 3214  [c] ). Students are entitled to due process at such hearings (Education Law § 3214 [c] ; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37, 38 [3d Dept 2002]), which includes the right to adjucation by “a neutral hearing officer” (Matter of DeVore, 11 Ed Dept Rep 296, 298, Decision No. 8,469). In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).
Several factors lead me to conclude that the student did not receive the fair hearing required by Education Law § 3214. Below are the most significant:
- The MDR was held prior to a determination of the student’s guilt in contravention of 8 NYCRR 201.9 (c). In addition to purposes of economy—there is no purpose in holding an MDR if a student did not engage in the charged conduct—convening an MDR before the guilt phase presupposes a student’s guilt.
- The superintendent did not adequately ensure that he served as a neutral hearing officer. For example, he called witnesses on behalf of the district and responded directly to statements and questions from petitioner and her advocates concerning the district’s case as if he were serving as the district representative.
- The superintendent failed to specifically indicate what was introduced into evidence at the hearing. Although witnesses made reference to an “evidence packet” that had been delivered to petitioner, no one identified its contents at the hearing or sought its admission.
- The superintendent made statements reflecting his unwillingness to consider some of petitioner’s arguments. For example, he suggested several times that petitioner forfeited her right to raise procedural objections at the hearing because she did not request an informal conference in conjunction with the student’s short-term suspension. The superintendent also described several of petitioner’s arguments as “technicalities,” and he stated it was “troubling” and an “issue of concern” that they were even raised.
- The student’s advocate stated, and the district did not dispute, that the high school principal testified by reading a written, prepared statement into the record. Despite a request by petitioner, there is no indication that this written statement was provided to her or entered into evidence at the hearing.
Cumulatively, these errors denied the student “a fair opportunity to tell [his] side of the story” before an impartial hearing officer (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d at 140; see also Appeal of T.F., 60 Ed Dept Rep, Decision No. 17,916; Appeal of C.B., 57 id., Decision No. 17,272; Appeal of Parker, 34 id. 379, Decision No. 13,351). As such, the student was deprived of his right to due process during the hearing. Consequently, the long-term suspension must be expunged from his record.
Finally, while this appeal concerns the long-term suspension imposed on December 4, 2020, it appears that respondent may not have expunged two prior suspensions for which an MDR team found similar conduct to be a manifestation of the student’s disability. If these prior suspensions have not been expunged, respondent must do so immediately (see Jay F. v William S. Hart Union High Sch. Dist., US Dist Ct, CD Cal, 16 Civ 5117, Hatter, Jr., J., 2017, affd, 772 Fed Appx 578 [9th Cir 2019]).
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 all references to the long-term suspension described herein.
END OF FILE
 The record reflects that the student was suspended twice in the month prior to the suspension that is the subject of this appeal for engaging in similar conduct; i.e., sending inappropriate messages to district students. Respondent concluded that, in both instances, the student’s conduct was a manifestation of his disability or a direct result of the district’s failure to implement the IEP. The record further reflects that both petitioner and the school district took steps thereafter to limit the student’s access to digital platforms where he could engage in such communications.
 While hearing officers may ask questions to clarify issues, they should not assist either party in making their case. In this respect, many of the problems at the hearing could have been avoided if an individual other than the superintendent served as the district’s representative.
 The district has the burden of proving a student’s guilt at the hearing through competent and substantial evidence (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 140-141 ; Matter of Board of Educ. of City School Dist. of City of N.Y., 293 AD2d at 39; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909). As such, a superintendent may not draw a negative inference from a parent’s failure to request or participate in an informal conference in connection with a short-term (i.e., five days or less) suspension.