Decision No. 18,121
Appeal of C.W., on behalf of her child, from action of the Board of Education of the Oakfield-Alabama Central School District regarding student discipline.
Decision No. 18,121
(May 16, 2022)
The Legal Aid Society of Rochester, New York, attorneys for petitioner, Jonathan Falk, Esq., of counsel
Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Oakfield-Alabama Central School District (“respondent” or “the Board”) denying her appeal of the superintendent’s decision to impose discipline on her child (“the student”). The appeal must be sustained in part.
During the 2020-2021 school year, the student attended respondent’s high school. On January 26, 2021, the student displayed a suicide note to students in the school building, stated that he had a list of students he did not like on his phone, and asked a student if she had a gun he could use. Subsequently, the student was subjected to a “mental health arrest” and transported to the Erie County Medical Center. As further described below, respondent provided an “incident report” to petitioner dated January 26, 2021, indicating that the student was suspended for five days.
A long-term suspension hearing was held on February 1, 2021. The student admitted that he engaged in the conduct underlying the charges against him. The hearing officer found the student guilty of the charged conduct and recommended a penalty of permanent suspension. In a letter dated February 3, 2021, the superintendent adopted the hearing officer’s findings and recommendations. This letter informed petitioner of her right to appeal the superintendent’s determination to respondent within 15 days of the date of the decision.
By letter dated June 3, 2021, petitioner appealed to respondent. She acknowledged that her request was beyond the 15-day timeframe but asserted that the delay should be excused due to her family’s need to attend to the student’s mental health. On June 15, 2021, respondent denied the appeal as untimely. This appeal ensued. Petitioner’s request for interim relief was denied on August 3, 2021.
Petitioner asserts that her delay in appealing to respondent should be excused because a 15-day time limitation is too restrictive, as recognized in prior decisions of the Commissioner. Petitioner further argues that the student’s due process rights were violated when she was not notified of her right to an informal conference prior to the student’s short-term suspension. Petitioner additionally contends that a permanent suspension was excessive under the circumstances. For relief, petitioner requests the student’s immediate return to school or, in the alternative, that her appeal be remanded to respondent for its consideration.
Respondent maintains that petitioner failed to appeal the long-term suspension in a timely manner. On the merits, respondent contends that a permanent suspension was an appropriate penalty given the student’s conduct and anecdotal record.
First, I must address a procedural issue. A reply shall be served within 10 days after service of the answer to which it responds unless an extension is granted (8 NYCRR 275.14 [a], 276.3). Petitioner acknowledges that the reply was untimely but does not set forth good cause for the delay. Accordingly, I have not considered petitioner’s reply.
Turning 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  [b] , 8 NYCRR 100.2 [l] ; 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  [b] , 8 NYCRR 100.2 [l] ).
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 proposed the suspension in the first instance and 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 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).
Here, respondent failed to provide petitioner with legally sufficient written notice prior to the imposition of the student’s short-term suspension. According to the record, the student was “immediately suspended” following the incidents of January 26, 2021. Respondent provided an “incident report” to petitioner, dated January 26, 2021, that described the student’s misconduct and identified the disposition as a five day out of school suspension. Thus, respondent reached a decision to suspend the student before offering petitioner the opportunity for an informal conference with the principal, at which she could question complaining witnesses, in violation of 8 NYCRR 100.2 (l) (4) (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988; Appeal of a Student with a Disability, 59 id., Decision No. 17,846; Appeal of a Student with a Disability, 58 id., Decision No. 17,553). Additionally, the “incident report” did not inform petitioner of her rights to an informal conference with the principal or to question complaining witnesses (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652; Appeal of a Student with a Disability, 58 id., Decision No. 17,503; Appeal of S.K., 56 id., Decision No. 17,031). Therefore, the student’s five-day suspension must be expunged from his record.
Turning to the timeliness of petitioner’s long-term suspension appeal, Education Law § 3214 (3) (c) (1) provides that a parent may appeal a superintendent’s long-term suspension to the board of education. The record reflects that respondent will only consider such appeals if submitted within 15 days. The Commissioner has consistently denounced such restrictive timelines for appeals of long-term suspensions, characterizing them as inconsistent with due process, the Education Law, and sound educational policy (Appeal of C.B., 57 Ed Dept Rep, Decision No. 17,272; Appeal of B.L.G., 50 id., Decision No. 16,101; Appeal of M.T., 48 id. 263, Decision No. 15,854). Parents’ statutory right to such an appeal cannot be extinguished based solely upon administrative convenience (Education Law § 3214  [c] ; see Appeal of M.T., 48 Ed Dept Rep 263, Decision No. 15,854). Therefore, I decline to apply respondent’s 15-day timeframe—which permits no exceptions and is not memorialized in board policy—under the circumstances of this case.
Given the fact that the student’s long-term suspension remains live, it would ordinarily be remanded to respondent for a determination thereto (cf. Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258). However, I decline to do so under the circumstances. While respondent characterizes the superintendent’s penalty as a “permanent suspension,” the record reflects that the student is currently attending a Board of Cooperative Educational Services (“BOCES”) program through a placement by respondent’s committee on special education (“CSE”). The student would only have a right to attend this program pursuant to a contract between the BOCES and respondent (Education Law § 1950  [d] ). Therefore, respondent cannot plausibly argue that it continues to impose a permanent suspension when its CSE authorized the student’s enrollment in the BOCES program.
Given these circumstances, it would be arbitrary and capricious for respondent to uphold a permanent suspension. “[T]he inquiry in … such appeals is whether [a] student has demonstrated ‘an alarming disregard for the safety of others’ and whether permanent suspension is necessary to safeguard the well-being of other students” (Appeal of D.B. and A.B., 57 Ed Dept Rep, Decision No. 17,395, quoting Appeal of K.G., 51 Ed Dept Rep, Decision No. 16,262). If respondent felt that the student’s suspension was “necessary to safeguard the well-being of other students,” its CSE would not have enrolled him in a class with other students.
While the matter could theoretically be remanded to respondent to impose a penalty less severe than permanent suspension, I decline to do so. The student has been suspended, at least on paper, for over a year. During that time, the student was evaluated by respondent’s CSE and enrolled in the BOCES program. I find that the imposition of additional discipline at this juncture would be “inappropriately punitive” (see Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055). Therefore, respondent must immediately re-admit the student to school (see Appeal of T.A., 50 Ed Dept Rep, Decision No. 16,148). Nothing, however, shall preclude respondent’s CSE from making an appropriate placement recommendation, including the BOCES program.
I have considered petitioner’s remaining arguments and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the short-term suspension of the student described herein is annulled and expunged from his record; and
IT IS FURTHER ORDERED that respondent expunge from the student’s records any reference to a “permanent suspension” concerning the events described herein; and
IT IS FURTHER ORDERED that respondent immediately re-admit the student to school in the Oakfield-Alabama Central School District.
END OF FILE
 While the student admitted that he did not respond to the assistant principal when asked to “promise” that he would not hurt the students identified on the list on his phone, he also indicated at the hearing that, separately, he told the assistant principal: “I do not want to hurt any of those kids; I just prefer not to talk to them.”
 Respondent did not address the short-term suspension in its memorandum of law. As stated in Appeal of a Student with a Disability (60 Ed Dept Rep, Decision No. 17,988), if a school district “concludes that a district violated a student’s due process rights in connection with a served suspension – including her or his right to legally sufficient written notice under Education Law § 3214 (3) (b) (1) and 8 NYCRR 100.2 (l) (4), it must immediately expunge the suspension from the student’s record. This remedy cannot be deferred if and until a parent commences an appeal to the Commissioner of Education.”
 The student’s record should reflect that he was not, in fact, suspended when he attended the CSE’s recommended placement.