Decision No. 18,344
Appeal of R.M. and C.M., on behalf of their child, from action of the Board of Education of the Vernon-Verona-Sherrill Central School District regarding student discipline.
Decision No. 18,344
(September 20, 2023)
Ferrara Fiorenza, P.C., attorneys for respondent, Mallory A. Roberts, Esq., of counsel
ROSA., Commissioner.--Petitioners appeal the decision of the Board of Education of the Vernon-Verona-Sherrill Central School District (“respondent”) to impose discipline upon their child (the “student”). The appeal must be sustained.
At all times relevant to this appeal, the student attended one of respondent’s elementary schools. On Friday, March 3, 2023, the student told a classmate, “if you ever touch me again ... ” and made a “hand gesture with his finger across his throat.” The elementary school principal learned of this incident on Monday, March 6, 2023. She spoke with the student that day, who admitted that he had engaged in the alleged behavior. The principal thereafter “informed [the student] that[,] due to his behavior[,] he would receive one day of in-school suspension” the following day.
In an email sent on March 6, 2023 at 2:26 p.m., the principal informed petitioner C.M. of the alleged incident, and stated that the student’s “consequence will be one day in ISS (In School Suspension).” The email invited petitioner to “call [the principal] if [she] would like to speak further about this incident.” The principal sent a follow-up email on the morning of March 7, 2023 and a physical letter that petitioners received on March 8, 2023. The student served his suspension on March 7, 2023. This appeal ensued.
Petitioners argue that the in-school suspension was excessive. They further argue that the student had been a victim of bullying and harassment and that his misconduct was a manifestation of his disability. Petitioners additionally assert that respondent did not respect petitioner’s procedural rights under Education Law § 3214. Petitioners request, among other relief, expungement of the suspension from the student’s record.
Respondent argues that it observed due process in imposing the suspension, as in-school suspensions are not governed by the due process procedures contained in Education Law § 3214.
In-school suspensions and suspensions from extracurricular activities are not governed by Education Law § 3214 and do not require a full hearing; rather, only “minimal standards of administrative due process” apply (Matter of O’Connor v Board of Educ. of Cent. School Dist. No. 1 of Vil. Of Ilion, 65 Misc 2d 40, 43 [Sup Ct, Herkimer County 1970]; see also Matter of Pellegrino, 22 Ed Dept Rep, Decision No. 11,037; Matter of Moore, et al., 22 id. 180, Decision No. 10,922). Basic fairness dictates that a student and the person in parental relation to such student must receive an opportunity to discuss the circumstances underlying the threatened disciplinary action with the person or body authorized to impose such discipline (Appeal of M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; Appeal of D.K., 48 id. 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700). Unless a student “poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process,” the opportunity to discuss the in-school or extracurricular suspension “should precede removal of the student from school” (Goss v. Lopez, 419 US 565, 582–83 ; see also Matter of O’Connor, 65 Misc 2d at 43).
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, the principal did not provide petitioners with an opportunity to discuss the in-school suspension prior to its imposition. The principal merely informed petitioners that the student’s in-school suspension would take place the next day, which left “zero school hours” for petitioners to meet with the principal to discuss the incident (Appeal of J.F., 61 Ed Dept Rep, Decision No. 18,129 [two-day out-of-school suspension]). Respondent does not assert, and the record does not support a finding, that the student was a continuing danger or ongoing threat of disruption. In this respect, the student was suspended for conduct that had occurred three days earlier. As such, I find that respondent denied petitioners due process by not affording them an opportunity to discuss the proposed in-school suspension prior to its imposition (Goss, 419 US at 582–83; Matter of O’Connor, 65 Misc 2d at 43).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent expunge any reference to the in-school suspension at issue in this appeal from the student’s record.
END OF FILE
 The Legislature has codified this exception for out-of-school suspensions of five days or less (Education Law 3214 §  [b]  [“notice and opportunity for an informal conference shall take place prior to 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 ...”).
 It is undisputed that the principal informed petitioner that the student would serve his in-school suspension on March 7, 2023.