Appeal of C.A., on behalf of her child, from action of the Board of Education of the Carle Place Union Free School District regarding student discipline.

Decision No. 18,493

(September 9, 2024)

Guercio & Guercio LLP, attorneys for respondent, Matthew J. Mehnert, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Carle Place Union Free School District (“respondent”) to impose discipline upon her child (“student A”).  The appeal must be sustained.

At the time of the events relevant to this appeal, the student attended respondent’s middle/high school.  At approximately 2:00 p.m. on December 7, 2023, the student’s social studies teacher and co-teacher observed swastikas drawn on a worksheet completed by student A.[1]  The teacher contacted the assistant principal,[2] who interviewed student A and a classmate (“student B”).  Both students admitted to drawing swastikas.  Student A, however, indicated that he only did so because a third student (“student C”) had done so first.  The assistant principal interviewed student C, who stated that only student A and B had drawn the swastikas.

On the following day, the assistant principal contacted petitioner by telephone to, in his words, “inform her of the incident and schedule an informal conference to occur that day.”  Petitioner arrived at the school at approximately 3:30 p.m.  According to the assistant principal, he handed petitioner a notice of proposed suspension at the outset of the meeting.  Respondent indicates that petitioner then became “extremely upset” and “would not allow [the assistant principal] to speak.”  Petitioner denies these allegations.  The assistant principal further states that he attempted to “give [petitioner] an opportunity to respond and/or request to interview complaining witnesses ... but it was difficult to do so because [petitioner] kept talking over [him].”  At the end of the meeting, the assistant principal handed petitioner a letter indicating that the student had been suspended.  Appeals to the superintendent and respondent were denied; this appeal ensued.

Petitioner argues that student A did not understand the “hateful meaning” behind the symbol he drew.  As such, she argues that an out-of-school suspension was an inappropriately punitive response.  Petitioner also asserts that respondent denied her due process by immediately suspending the student upon the conclusion of her meeting with the assistant principal.  For relief, she seeks expungement of the suspension from student A’s record.

Respondent contends that it imposed a five-day suspension only after convening an informal conference and informing petitioner of her rights thereto.  Respondent further argues that a five-day suspension was not shocking to the conscience.

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 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]). 

Where possible, notification shall also be provided by telephone (8 NYCRR 100.2 [1] [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).

Initially, it is unclear whether the assistant principal informed petitioner that he intended the December 8, 2023 meeting to serve as the informal conference.  The assistant principal states in his affidavit that he “called [petitioner] to inform her of the incident and schedule an informal conference to occur that day.”  Even assuming that the assistant principal directly informed petitioner that their meeting would constitute the informal conference contemplated by Education Law § 3214 (3) (b) (1), this oral communication provided insufficient notice thereof (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

Following petitioner’s arrival at the middle/high school, the ensuing events are materially indistinguishable from those that transpired in Appeal of D.C. (63 Ed Dept Rep, Decision No. 18,393).[3]  As such, the instant appeal must be sustained for the reasons explained therein.  The only potential difference is the assistant principal’s assertion that he attempted to explain petitioner’s rights to her but was unable because she “kept talking over [him].”  Were this the case, respondent has not explained why it could not have afforded petitioner additional time to review the notice or scheduled the informal conference for another time.[4]

While the appeal must be sustained on procedural grounds, the record is unclear as to whether, or to what extent, student A understood the meaning associated with the swastika.  In addition to the parties’ contrasting positions, it is also possible, as an affiant suggests, that the student generally understood that it was objectionable without understanding its meaning.[5]

Given this lack of proof, I agree with a social studies teacher who submitted an affidavit in support of the petition.  She asserts that, with respect to student discipline, “[t]he focus should be on [a] teachable moment to educate and build understanding of intolerant symbols to avoid a repeat occurrence” (see also Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383 [“education lies at the core of any effective disciplinary measure”]).[6]  It is unclear what respondent expected student A to learn about the swastika by staying at home for five days.  Both student A and the school community would have been better served if, for example, student A was required to complete a research assignment on the hateful ideology associated with the swastika and the continuing menace of anti-Semitism.  Ignorance is the wellspring from which hate and prejudice arise—and schools bear a special responsibility to ensure its elimination.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent expunge any reference to the short-term suspension at issue in this appeal from the student’s record.

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