Decision No. 18,267
Appeal of L.O., on behalf of her child, from action of the Board of Education of the Roxbury Central School District regarding student discipline.
Decision No. 18,267
(April 26, 2023)
Ferrara Fiorenza, PC, attorneys for respondent, Thomas F. Barrett, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Roxbury Central School District (“respondent”) to impose discipline upon her child (the “student”). The appeal must be sustained.
The student attended ninth grade at respondent’s high school at the time of the events that gave rise to this appeal. On October 4, 2022, during study hall, a classroom teaching assistant (“TA”) observed the student “holding his phone up and making a motion as if he was shooting [the TA] with a gun.” As the student did so, his phone made the sound of a gun firing. The TA told the student that his actions were inappropriate and asked him to stop. According to the TA, “[i]n response, the [s]tudent turned towards another student with his phone out and replied to [the TA], ‘[a]fter I fire it a couple more times’” – and proceeded to make shooting sounds directed toward the other student. The TA observed that the student’s phone displayed an image of a gun and that it made a firing sound each time he touched the screen. The TA repeated her instruction to stop, and the student complied.
Early the next morning, the TA informed the building principal and respondent’s superintendent about the incident. The principal called the student to her office, where he admitted, verbally and in a written statement, that he had “pointed [his] phone like a gun and made sounds,” and had been “messing around being an idiot.” The principal verbally notified the student that he was suspended from school for at least five days, beginning that day.
The principal then convened a threat assessment team comprised of the school nurse and the school counselor “to determine any continuing danger to the school.” The team determined that the student presented no credible threat to himself or others.
Later that day, the principal met with petitioner and informed her of the student’s five-day suspension. According to the principal, “[p]etitioner questioned [her] and presented the [s]tudent’s version of events.” Petitioner then took the student home.
In a letter delivered the same day, the principal informed petitioner that the student was suspended for five days for “pointing a cell phone and making a gun shot.” The principal alleged this action constituted a “threat” under the district’s code of conduct. The letter advised petitioner of her right to meet with the principal to review her decision, to present the student’s version of the event, and to question complaining witnesses. The letter did not allege that the student’s presence in school presented a continuing danger or an ongoing threat of disruption to the academic process.
On October 6, 2022, at the end of the school day, petitioner met with the principal and the TA. Petitioner was given the opportunity to question the TA. At the end of the meeting, the principal declined to modify the five-day suspension. This appeal ensued.
Petitioner asserts that the student’s suspension was procedurally flawed and excessive. In particular, she alleges that the student was suspended before she received an opportunity for an informal conference with the principal. She asks that the suspension be expunged from the student’s record and that I admonish respondent for its alleged failure to use restorative practices when imposing student discipline.
Respondent argues that the student posed a continuing danger to students and faculty at the time the student was suspended. Additionally, respondent asserts that its actions were justified and that the penalty imposed was appropriate.
I must first address a procedural matter. Respondent objects to consideration of petitioner’s reply because it was submitted late. A reply must be served within 10 days after service of the answer to which it responds (8 NYCRR 275.14 [a]). If the answer was served by mail, the date of mailing and the four days subsequent thereto shall be excluded in calculating the 10-day period (8 NYCRR 275.14 [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803). Here, petitioner’s reply was served one day late. Although petitioner did not request an extension of time as contemplated by 8 NYCRR 276.3 (a), I will accept her reply in light of the fact that she is proceeding pro se; that the delay of a single day was de minimis; and that there is no evidence that respondent was prejudiced by the delay (Appeal of S.C., 59 Ed Dept Rep, Decision No. 17,710; Appeal of Lombardo, 37 id. 721, Decision No. 13,967).
However, 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, 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).
Here, respondent failed to provide petitioner with legally sufficient written notice prior to imposing the student’s short-term suspension. In the October 5, 2022 suspension letter, the principal wrote: “ … your child has OUT OF SCHOOL SUSPENSION for 5 days – 10/5, 10/6, 10/11, 10/12, 10/13 … You have the right to a meeting with me to review this decision, present your child’s version of the event and question complaining witnesses” (emphasis in original). An informal conference did not take place until the end of the next school day, on October 6, 2022, at which point the student had already been suspended from school for nearly two full days. Thus, respondent violated 8 NYCRR 100.2 (l) (4) by suspending the student prior to offering the student and petitioner the opportunity for an informal conference (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 rely upon the continuing danger/ongoing threat of disruption exception as it failed to include such determination in the notice of suspension (e.g. Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988; Appeal of T.F., 60 id., Decision No. 17,916; Appeal of a Student with a Disability, 56 id., Decision No. 17,111; Appeal of T.T. and K.T., 52 id., Decision No. 16,386). But, even assuming that it had, there is no evidence that the student presented a continuing danger or ongoing threat of disruption. As evidenced by respondent’s threat assessment, it does not appear that the student presented any kind of actual danger or threat. Thus, respondent was not entitled to dispense with the due process protections of Education Law § 3214 (3) (b) (1) (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.
Respondent nevertheless argues that, even if the first two days of suspension were improperly imposed and should be expunged, the remaining three days of the suspension—i.e., those that occurred after the informal conference—were proper and should not be expunged. The Commissioner has held that “the remedy for procedural errors in connection with a short-term suspension is expungement of the incident from a student’s record,” a remedy that “necessarily encompasses expungement of the entire disciplinary incident” (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision 17,403). Thus, the entire five-day suspension must be expunged from the student’s record.
Given the disposition of this appeal, I need not address the parties’ remaining contentions—including whether the imposition of discipline for this incident was excessive.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent annul and expunge from the student’s record all references to the short-term suspension described herein.
END OF FILE
 At some point later that day, petitioner met with the superintendent regarding the incident. The superintendent declined to disturb the principal’s determination.
 I note, however, that the TA acted appropriately in bringing this incident to the attention of the building principal and superintendent.