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Decision No. 18,131

Appeal of M.F. and T.F., on behalf of their child, from action of the Board of Education of the Half Hollow Hills Central School District regarding student discipline.

Decision No. 18,131

(June 13, 2022)

Law Offices of Susan J. Deedy & Associates, attorneys for petitioners, Richard F. Corrao, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Wade C. Wilkinson, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal a determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) to suspend their child (“the student”).  The appeal must be dismissed. 

The student attended ninth grade in respondent’s high school during the 2020-2021 school year.  On Saturday June 12, 2021, the parent of a classmate of the student (“A.G.”), emailed the high school principal to complain that the student had directed racial slurs toward her son.  She requested that the matter be addressed immediately.

On the morning of Monday, June 14, 2021, the principal met with A.G., who stated that the student “had used racial slurs on multiple occasions.”  A.G. further stated that “he was so distraught by the slurs” on Friday June 11 that he “asked his mother to pick him up before the end of the school day to avoid having to interact with [the student] during Social Studies class.”  Later that morning, the principal called the student to his office.  When asked if he knew why he had been called to the office, the student indicated that “he was there because of his use of racial slurs with A.G.”  According to the principal, the student admitted to using racial slurs generally—and making two offensive comments directed toward A.G, specifically.

The principal proceeded to notify petitioners that the student was suspended immediately, requesting that they pick him up from school as soon as possible.  Upon their arrival, the principal hand-delivered a written notice of suspension.  This notice indicated that the student’s “continued presence in school pose[d] a continuing danger and/or an ongoing threat of disruption to the academic process.”  The student served a three day out-of-school suspension from June 14 through June 16, 2021.  Petitioner appealed this suspension to the superintendent and respondent; her appeals were denied.  This appeal ensued.

Petitioners argue that respondent failed to adequately investigate the incident in accordance with board policy.  Petitioners deny that the student uttered the two specific slurs attributed to him.  Petitioners further contend that the principal’s continuing danger/ongoing threat of disruption determination was erroneous; consequently, they argue that they were denied their right to an informal conference prior to commencement of the suspension.  Petitioners request that the suspension be expunged from the student’s record or, alternatively, that the language of the notice of suspension be modified to, among other things, “[r]emove the charges and any mention of Harassment, Intimidation and Bullying.”

Respondent contends that it appropriately investigated the incident, that the student admitted his guilt, and that a three day out-of-school suspension was appropriate.  Respondent further argues that it was appropriate to suspend the student immediately given the effect his comments had on A.G.

First, I must address a procedural matter.  Petitioner submitted a reply in this matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, the decision to suspend a student from school pursuant to Education Law § 3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 140-141 [1997]; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37, 39 [3d Dept 2002]; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916). 

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]).

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).

On this record, petitioners have failed to meet their burden to show that the process by which the student was suspended, or the suspension itself, was inappropriate.  The principal avers that the student admitted his guilt as to the charged conduct; namely, directing two racial slurs toward another student, A.G., during class.  While petitioners deny this admission on appeal, they lack personal or direct knowledge of what transpired in the classroom.  Moreover, neither they nor the student submitted an affidavit or statement with the petition (see Appeal of A.M., 61 Ed Dept Rep, Decision No. 18,124; Appeal of G.J.-F., 58 id., Decision No. 17,608).  Therefore, I find that respondent possessed competent and substantial evidence of the student’s guilt.

Petitioners additionally challenge the principal’s determination that the student posed “a continuing danger and/or an ongoing threat of disruption to the academic process.”  Upon review of the record, I decline to reverse the principal’s determination.  The principal learned, on a Saturday, that the student’s comments offended A.G. and had caused him to leave school early on the preceding day.  The principal proceeded to investigate that Monday morning.  He confirmed that the student admitted to uttering racial slurs in A.G.’s presence and decided to suspend him shortly thereafter.  Given the recentness of the underlying incident and its effect on A.G., I find that it was reasonable for the principal to conclude that the student’s continued presence in school constituted an ongoing threat of disruption to the academic process.

I acknowledge that the principal sent the student back to class for two periods on June 14 before reaching his determination.  While this is inconsistent with a continuing danger/ongoing threat of disruption finding, I do not find it dispositive as the principal suspended the student within a relatively short period of time after the student admitted to engaging in the charged conduct.  Moreover, upon reaching his determination, the principal promptly contacted petitioners and hand-delivered a legally sufficient notice of short-term suspension.  As such, I find that the principal permissibly suspended the student prior to offering, or holding, an informal conference (see Appeal of C.M., 53 Ed Dept Rep, Decision No. 16,583; Appeal of H.B., 46 id. 369, Decision No. 15,536). 

Finally, petitioners suggest that the student’s conduct warranted a more lenient penalty since he and his friends, including A.G., “use [] popular ‘race slang’ amongst themselves ….”  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so shocking to the conscience as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055; Appeal of C.N. and C.N., 60 id., Decision No. 17,954).  Petitioners have failed to prove that the student and his peer group utilize race slurs in a friendly or joking manner; the principal indicates that no evidence before him suggested this.  However, even assuming the truth of this allegation, the racial slurs used by the student—including the n-word—were inherently offensive, even if intended as a “joke.”  Thus, joking or not, I cannot find a three-day suspension for racial slurs directed toward a classmate to be shocking to the conscience (see Appeal of a Student with a Disability, 43 Ed Dept Rep 372, Decision No. 15,021).

Finally, to the extent that petitioners request that respondent amend the student’s record, amendment of student records is governed by the federal Family Educational Rights and Privacy Act (“FERPA”) (20 USC § 1232 [g]) and its implementing regulations (see 34 CFR 99.20, 99.21, 99.22).  The Commissioner lacks jurisdiction to consider FERPA claims.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 USC § 1232 [g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502).

I have considered petitioners’ remaining arguments and find them to be without merit.