Decision No. 18,204
Appeal of C.L., on behalf of his child, from action of the Board of Education of the City School District of the City of Utica regarding student discipline.
Decision No. 18,204
(October 12, 2022)
Legal Services of Central New York, attorneys for petitioner, Thomas J. Morosco, Esq., of counsel
Donald R. Gerace, Esq., attorney for respondent
ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the City School District of the City of Utica (“respondent” or the “board”) related to discipline imposed on his child (the “student”). The appeal must be sustained.
The student attended high school in respondent’s district during the events described herein. On the morning of February 14, 2022, the “classroom page” of the student’s English class displayed a comment attributed to the student’s profile that read, “ima shot up the English class.” By letter dated March 1, 2022, respondent informed the student’s family that he was suspended from February 16, 2022 to March 1, 2022 (a total of five school days with winter break in between). The letter further indicated that a long-term suspension hearing would take place on March 1, 2022 at 12:00 concerning the charge of “misuse of computer account.” The hearing, presided over by a hearing officer, convened as scheduled. Thereafter, the hearing officer recommended that the student be suspended until at least the end of the school year.
By letter dated March 3, 2022, petitioner attempted to appeal the hearing officer’s recommendations to the board. As further explained herein, respondent has adopted a process whereby an “appeals administrator” considers appeals prior to consideration by the superintendent. Thus, respondent considered the appeal as if it had been presented to respondent’s appeals administrator. The appeals administrator upheld the hearing officer’s recommendation. By letter dated March 31, 2022, petitioner appealed the appeal administrator’s decision. On April 13, 2022, respondent’s superintendent issued a decision upholding the recommendation of the hearing officer and denying petitioner’s second appeal. This appeal ensued.
Petitioner argues that respondent’s appeal procedure is impermissible, the notice of the superintendent’s hearing was insufficient, the district wrongfully withheld a record of the hearing, and that respondent did not produce sufficient evidence of the student’s guilt at the hearing. Petitioner requests expungement of the long-term suspension from the student’s record.
Respondent argues that the appeal must be dismissed as premature, as petitioner has not yet appealed to the board. On the merits, respondent contends that its appeal procedure is lawful, the notice of the superintendent’s hearing was sufficient, it made and maintained a recording of the superintendent’s hearing, and its finding of guilt was supported by sufficient evidence.
A student may only be suspended for six or more days following an administrative hearing. The superintendent, or a hearing officer as her or his designee, may preside over the hearing (Education Law § 3214  [c] ). Parents have a right to appeal the superintendent’s decision to the board of education. Respondent’s appeals policy for long-term suspensions interposes an additional step, whereby the recommendation of a hearing officer must be appealed to an “appeals administrator.” The decision of the appeals administrator may then be appealed to the superintendent and then the board. Parents are given 10 days to appeal at each stage of this process.
Respondent’s appeal procedure is inconsistent with Education Law § 3214 in three specific respects. First, the “appeals administrator” requirement impermissibly modifies the statutory process for appeals of long-term suspensions. The Legislature has spoken on the process that must be followed for suspensions of six days or more; respondent lacks authority to modify these procedures (D'Amico v Christie, 71 NY2d 76, 87 ; see generally People v Galindo, 38 NY3d 199, 206 ). By contrast, the Commissioner has allowed local school districts to dictate how appeals of suspensions of five days or less may be presented because Education Law § 3214 (3) (b) (1) is silent on this point. As such, school districts may impose requirements so long as they are fair and clearly communicated to parents (see e.g. Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543).
Second, the district cannot require a parent to “appeal” a long-term suspension to the superintendent because she or he, by statute, is responsible for making the decision to suspend (Education Law § 3214  [c] ; Appeal of M.T., 48 Ed Dept Rep 263, Decision No. 15,854; Appeal of Amara S., 39 id. 90, Decision No. 14,182). While a superintendent may designate a hearing officer to preside over the hearing, Education Law § 3214 (3) (c) (1) states that the hearing officer’s “report … shall be advisory only.” Thus, respondent’s policy improperly relieves the superintendent of his or her responsibility to suspend.
Third, a 10-day timeline for appeals of long-term suspensions to the board is inconsistent with due process, the Education Law, and sound educational policy (see Appeal of C.W., 61 Ed Dept Rep, Decision No. 18,121 [finding a 15-day timeline for local appeal inconsistent with due process]; Appeal of C.B., 57 id., Decision No. 17,272). This is particularly so where respondent has not committed to resolving such appeals within a specific timeframe.
In addition to the above concerns, respondent inexplicably delayed providing the long-term suspension recording to petitioner. Respondent’s obligation to maintain a record of long-term student disciplinary hearings pursuant to Education Law § 3214 (3) (c) and section 275.12 (b) of the Commissioner’s regulations necessarily implies a parent’s right of access. Respondent’s failure to provide petitioner with such access in a timely manner denied him due process (see Appeal of C.B., 57 Ed Dept Rep, Decision No. 17,272; Appeal of A.G., 41 id. 262, Decision No. 14,681). Indeed, respondent only provided a copy of the recording in July 2022 upon my specific request.
Given the due process violations described above, the only appropriate remedy is expungement of the student’s suspension from his record. Respondent is further directed to conform its procedures for consideration of long-term suspension requests to those outlined in Education Law § 3214. While I am constrained to sustain petitioner’s appeal based on the record before me, I note that nothing herein should be interpreted as minimizing the gravity of safety issues raised by threats of violence in schools.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent’s long-term suspension of the student from March 1, 2022 through the end of the 2021-2022 school year be expunged from his record; and
IT IS FURTHER ORDERED that respondent revise its student discipline policies and procedures in accordance with this decision.
END OF FILE
 The date on this letter appears to be erroneous.
 Contrary to respondent’s argument on appeal, there is no indication in its policy that such appeal is permissive. But even if it were, I would still find that it impermissibly contravenes Education Law § 3214.
 See 8 NYCRR 276.5. Respondent was required to submit a copy of the recording with its answer (8 NYCRR 275.12). Counsel for respondent contends that its omission was inadvertent.