Appeal of J.P., on behalf of his child, from action of the Board of Education of the Greece Central School District regarding student discipline.

 

Decision No. 18,404

(May 6, 2024)

McNelis Law PLLC, attorneys for petitioner, Patrick M. McNelis, Esq., of counsel

Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Greece Central School District (“respondent”) to impose discipline on his child (the “student”).  The appeal must be dismissed.

The student attended eighth grade in respondent’s district during the 2022-2023 school year.  On May 3, 2023, at about 9:30 a.m., a teacher informed a security supervisor that she had heard a classmate ask the student if he had a gun, to which he laughed and responded “yeah.”  The security supervisor reported to the classroom and escorted the student to the security office.  The student indicated that he did not remember what he said but had been joking.  The student consented to a search of his backpack, which revealed no weapons.  Security told the student to remain in the security office while they interviewed three other student witnesses.  Two of the students confirmed the substance of the teacher’s recollection, with one recalling that the student additionally said “I’ll shoot all three of you guys.”  The third witness claimed not to have heard the conversation.

While security conducted these interviews, the student disobeyed the security supervisor by leaving his office.  School staff retrieved the student and brought him back to the office. 

Upon the student’s return, the security supervisor asked him whether he had access to guns at home.  The student refused to answer.  In accordance with district security protocol, respondent contacted the local police department.  Respondent asserts that responding officers arrived and waited outside the security office.

Respondent’s security supervisor contacted petitioner by phone and asked him to come to school.  Petitioner soon arrived in an “elevated and angry state.”  He refused to answer a question regarding the student’s access to guns at home and directed the student not to answer the same.  The principal verbally informed petitioner that the student would be suspended immediately for five days; petitioner then left with the student.

Later that evening, a security guard personally delivered a suspension notice to petitioner’s home around 6:00 p.m.  When no one answered the door, the security guard placed the notice in petitioner’s mailbox.  The next day, petitioner claimed not to have received this notice.  The principal then provided petitioner with another copy of the notice, which stated that the student’s “presence in school pose[d] an ongoing threat to the disruption of the academic process.”  This appeal ensued.

Petitioner challenges the student’s short-term suspension, arguing that he received insufficient notice thereof.  He additionally contends that police officers questioned the student in violation of board policy.  For relief, petitioner seeks expungement of the short-term suspension from the student’s record.

Respondent contends that the appeal must be dismissed because the notice to petitioner was legally sufficient.

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]).

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).

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to ensure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR 100.2 [l] [4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (see e.g. Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,170; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).  Where possible, notification shall also be provided by telephone (8 NYCRR 100.2 [l] [4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

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).

Petitioner has failed to prove any error in connection with respondent’s notice of the short-term suspension.  While petitioner asserts that the student “did not, in fact, have any intention of shooting anyone,” this assertion is “based upon [his] review of the incident with the [s]tudent.”  The relevant inquiry, however, is what school officials knew at the time they made the finding of a continuing danger/ongoing threat of disruption (see Appeal of L.O., 62 Ed Dept Rep, Decision No. 18,267; Appeal of M.F. and T.F., 61 id., Decision No. 18,131).  Here, respondent reasonably concluded that the student presented as a continuing danger because he stated that he had a gun in class; would not answer whether he had access to guns at home; and disregarded the security supervisor’s directive to remain in his office (Appeal of M.F. and T.F., 61 Ed Dept Rep, Decision No. 18,131; Appeal of H.B., 46 id. 369, Decision No. 15,536).  

Petitioner argues that this appeal is analogous to Appeal of a Student with a Disability (58 Ed Dept Rep, Decision No. 17,610), in which the Commissioner declined to credit a school district’s continuing danger determination.  In that appeal, however, local law enforcement had investigated the alleged threat and informed district officials of their conclusion that the student did not present a threat.  Here, by contrast, respondent reasonably concluded that the student presented a continuing danger for the reasons described above.

I further find that respondent provided legally sufficient written notice.  As indicated above, a security guard personally delivered a suspension notice to petitioner’s home on the same day the student was suspended.  Personal delivery is one of the approved methods for delivering a suspension notice specifically enumerated in 8 NYCRR 100.2 (l) (4).  Additionally, when petitioner claimed not to have received this letter, respondent provided another copy within less than 24 hours.  Based on this, I find that respondent delivered legally sufficient notice “as soon after the suspension as [was] reasonably practicable” (Education Law § 3214 [3] [b] [1]; 8 NYCRR 100.2 [l] [4]; see Appeal of T.L. and W.L., 46 Ed Dept Rep 504, Decision No. 15,576; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).

Finally, petitioner has not shown that respondent violated board policy by failing to ensure his presence during the student’s questioning by law enforcement.  Respondent has submitted affidavits indicating that the police officers who arrived at the school did not question the student.  Accordingly, no relief is warranted with regard to this claim (Appeal of S.K. and J.K., 59 Ed Dept Rep, Decision No. 17,782; Appeal of N.C. and M.C., 56 id., Decision No. 17,056; Appeal of R.C. and N.C., 54 id., Decision No. 16,674).

THE APPEAL IS DISMISSED.

END OF FILE