Decision No. 18,249
Appeal of B.M. and P.M., on behalf of their child, from action of the Board of Education of the Manhasset Union Free School District regarding student discipline.
Decision No. 18,249
(March 8, 2023)
Law Offices of Susan J. Deedy & Associates, attorneys for petitioners, Richard F. Corrao, Jr., Esq., of counsel
Frazer & Feldman, LLP, attorneys for respondent, Joseph P. Lilly, Esq., of counsel
ROSA., Commissioner.--Petitioners appeal a determination of the Board of Education of the Manhasset Union Free School District (“respondent”) to impose discipline upon their child (the “student”). The appeal must be sustained in part.
The student attended tenth grade in respondent’s high school during the 2021-2022 school year. During a crew team practice on or about October 5, 2021, the student spit water onto a teammate. The school principal investigated the incident with the help of other personnel, who interviewed the teammate and other students.
At a meeting attended by respondent’s athletic director, the coaches of the crew team, and the student’s mother, the student acknowledged that she had spit water on her teammate, but insisted that she had done so unintentionally, as a reflexive response to a joke. Thereafter, the student and her mother met with the principal to discuss the incident as well as allegations that the student had made derogatory comments about the teammate’s ethnicity. The student reiterated that she had not intended to spit water on her teammate. Additionally, according to the principal, the student “vaguely asserted that the [derogatory] comments attributed to her were not accurate, and that any comments she made to the [teammate] had been intended as jokes.”
On October 20, 2021, respondent provided petitioners with written notice that the student was suspended from school for five days and from participation on any school athletic team for the remainder of the 2021-2022 school year. The notice further indicated that the student’s “continued presence in the school pose[d] a continuing danger and/or an ongoing threat of disruption to the academic process.”
The student served a five-day out-of-school suspension from October 21 through October 27, 2021. On October 25, 2021, the principal held an informal conference with the student’s mother. According to respondent, “all of the District personnel who had been involved in the investigation were identified by [the principal] as the complaining witnesses, and were made available for questioning by [the student’s] mother”; as such, the principal did not permit the student’s mother to question the teammate or the student witnesses. Petitioners appealed the student’s suspensions to the superintendent and respondent; these appeals were denied. This appeal ensued. Petitioners’ request for interim relief was denied on February 28, 2022.
Petitioners argue that the notice of the suspension was legally insufficient and 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. They further complain that respondent did not provide petitioners with an opportunity to confront the complaining witnesses or provide them with a written decision following the informal conference. Petitioners assert that respondent’s decision to suspend the student was not based on competent and substantial evidence and that the penalty imposed was excessive. Finally, petitioners assert that respondent violated the student’s First Amendment and due process rights. They request that the student’s suspension be expunged from her record and that the student be allowed to participate in school athletics immediately.
Respondent contends that its decision to suspend the student was based upon substantial and competent evidence. Respondent further argues that the student constituted a continuing danger/ongoing threat of disruption. Finally, respondent argues that out-of-school and athletic suspensions were appropriate given the severity and ongoing nature of the student’s behavior toward the teammate.
I must first address a procedural matter. Respondent asserts that petitioners did not preserve certain claims and arguments for appeal by failing to raise them below. Where state law provides for an initial district-level decision, arguments may not be raised for the first time in an appeal to the Commissioner pursuant to Education Law § 310 (see e.g. Appeal of T.F., 60 Ed Dept Rep, Decision No. 17,966; Appeal of A.C., 59 id., Decision No. 17,799; Appeal of N.H., 59 id., Decision No. 17,732). In their appeal of the superintendent’s determination, counsel for petitioners indicated that the appeal was based, among other things, “on [the superintendent’s] affirmation of [the principal’s] … suspension before even conducting an informal conference … with no due process … in violation of Education Law section 3214 ….” I find that this sufficiently placed respondent on notice that petitioners objected to the level of due process afforded them at the district level. As such, petitioners may pursue this claim on appeal.
Turning to the merits, 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 id. 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).
Respondent failed to provide petitioners with legally sufficient written notice prior to the imposition of the student’s short-term suspension. In the October 20, 2021 suspension letter, the principal wrote: “…I have suspended [the student] for a period of five (5) days: Thursday, October 21, 2021 through Wednesday, October 27, 2021 … You and your child will have the opportunity to have an informal conference with me as soon as is reasonably practicable.” An informal conference did not take place until October 25, 2021. Thus, respondent both decided to suspend and, in fact, suspended the student before offering petitioners the opportunity for an informal conference 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).
Respondent cannot seek refuge in the continuing danger/ongoing threat of disruption exception. In the suspension letter, the principal provided the following explanation for the student’s suspension:
… during the period between September 15, 2021 and October 6, 2021, [the student] engaged in a course of conduct in which she verbally and physically harassed another student … at times commenting on the student’s ethnicity, while other times saying insulting and demeaning remarks … Finally, [the student] spat water from her mouth onto the side of [the teammate’s] face and shoulder.
Disturbing as this conduct may be, it concerns a course of conduct that occurred at least two weeks before imposition of the suspension. Respondent presents no evidence that any further incidents between the student and the teammate, or any other students, occurred during that two-week period. It is, of course, inappropriate to spit water onto a fellow student and make “insulting and demeaning remarks.” But the student attended school for two weeks after this alleged conduct, apparently without incident. As such, respondent was not entitled to dispense with the due process protections of Education Law § 3214 (3) (b) (1) (cf. Appeal of M.F. and T.F., 61 Ed Dept Rep, Decision No. 18,131 [finding that it was reasonable for the principal to conclude that the student’s presence constituted an ongoing threat, given the recentness of the underlying incident and its effect on the victim]; see Appeal of J.F., 61 id., Decision No. 18,129; Appeal of a Student with a Disability, 58 id., Decision No. 17,610). Accordingly, the short-term suspension must be expunged from the student’s record.
Petitioners also challenge respondent’s penalty prohibiting the student from participating on any school athletic team for the remainder of the 2021-2022 school year. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 ). Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522). The 2021-2022 school year has ended, rendering this claim moot. Moreover, petitioners did not request expungement of this suspension from the student’s record and there is no indication that respondent maintains a record thereto.
Finally, I am compelled to comment on the principal’s assertion that he and other administrators were the “complaining witnesses” contemplated by Education Law § 3214 (3) (b) (1). An administrator may only be a complaining witness if she or he directly observed or discovered student misconduct. Here, the individuals who observed the student’s alleged misconduct were high school students. Thus, respondent was, upon request, required to make them available at an informal conference. The only exception to this statutory right is when: (1) a student witness’s identity is unknown to the student charged with misconduct; and (2) the school district “reasonably consider[s]” the charged student “to be potentially violent” (D.F. v Bd. of Educ. of Syosset Cent. Sch. Dist., 386 F Supp 2d 119, 127 [ED NY 2005]; see also Appeal of J.R., 61 Ed Dept Rep, Decision No. 18,091). The principal’s reasoning here—that producing one or more student witnesses “would have posed an unreasonable danger to [them] and would ... have constituted an unwarranted invasion of their privacy”—does not meet this standard (cf. Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,297; Appeal of C.M., 53 id., Decision No. 16,583).
In light of the foregoing, I need not address the parties’ remaining contentions.
THE APPEAL IS SUSTAINED IN PART.
IT IS ORDERED that the student’s five-day suspension from October 21 to October 27, 2021 be annulled and expunged from her record.
END OF FILE
 According to the principal, “[d]uring the investigation, [the student] was described by … witnesses as having made racist and other offensive remarks to [the teammate] … on separate occasions.”
 Petitioners were represented at the district level by a different attorney than their current counsel.
 The Commissioner, following a decision by Supreme Court, Albany County that conflated the “right to question complaining witnesses” applicable to suspensions of five or less days with the “right to question witnesses against [a] pupil” at a long-term suspension hearing for suspensions of six or more days, has applied this exception to short-term suspensions (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,297; Appeal of C.M., 53 id., Decision No. 16,583; compare Education Law §§ 3214  [b]  [short-term] with 3214  [c]  [long-term]).