Appeals of E.F., on behalf of her child, from action of the Board of Education of the Wappingers Central School District regarding student discipline.

Decision No. 18,494

(September 11, 2024)

Gellen Law PLLC, attorneys for petitioner, Andrea L. Gellen, Esq., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Steven L. Banks, Esq., of counsel

ROSA., Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Wappingers Central School District (“respondent” or “board”) to discipline her child (the “student”).[1]  Because the appeals present common questions of fact and law, they are consolidated for decision (8 NYCRR 275.18).  The appeals must be sustained.

During the afternoon on Friday, October 20, 2023, one of respondent’s high school principals learned of a video depicting an individual who stated that he would bring a gun to respondent’s homecoming football game that evening.  The video portrayed the student’s name at the top of the frame.  In response, respondent cancelled all homecoming events as well as its senior night.

On Sunday, October 22, 2023, the principal delivered a notice to petitioner indicating that the district was considering suspending the student for five days.  Petitioner contacted the principal later and requested an informal conference on Monday, October 23.  The principal proposed meeting at 7:30 a.m.  After petitioner indicated she was unavailable at that time, she and the principal agreed to meet at 1:00 p.m. instead.  It appears that the student was suspended prior to, and following, the informal conference.

Thereafter, the district convened a long-term suspension hearing on October 27, 2023.  In a notice of charges, the district charged the student with the following conduct:  “On Friday, October 20, 2023 [the student] violated the WCSD code of conduct when he posted a video of another student saying ‘Hey guys, I am going to be bringing a gun to RCK Football Homecoming game and you are going to see the outcome live.’”  The district alleged that this constituted a “Threat of School Violence and/or Disruptive Behavior and/or Disorderly Conduct and/or Reckless Endangerment.”

Following the hearing, the superintendent adopted the hearing officer’s recommendation to suspend the student through June 30, 2024.  An appeal to respondent was denied, and these appeals ensued.  Petitioner’s request for interim relief was granted on February 15, 2024.

Petitioner contends that she did not receive an opportunity for an informal conference prior to the student’s suspension.  Petitioner also argues that the district’s finding of guilt was not supported by the evidence adduced at the long-term suspension hearing, thus rendering the student’s punishment excessive.  Petitioner additionally contends that the superintendent and respondent failed to provide sufficient reasoning in support of their decisions upholding the student’s suspension.  For relief, petitioner seeks expungement of the short- and long-term suspensions from the student’s record.

Respondent argues that it afforded petitioner and the student sufficient opportunity for an informal conference prior to the start of the suspension; alternatively, it argues that the district had sufficient grounds to immediately suspend the student.  Respondent additionally contends that its determination was supported by competent and substantial evidence.  Finally, respondent states that there is no legal obligation for a board of education to provide legal analysis in upholding a suspension.

With respect to the short-term suspension, a school district 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).

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).

I agree with petitioner that respondent erred in failing to afford her the opportunity for an informal conference prior to October 23, 2023, the day the student’s suspension began (Appeal of D.W., 63 Ed Dept Rep, Decision No. 18,370; Appeal of R.M. and C.M., 63 id., Decision No. 18,344).  While the principal offered to meet early in the morning on October 23, “[l]eaving zero school hours between delivery of the notice and the beginning of a suspension precludes the ability to request and convene an informal conference” (Appeal of D.W., 63 Ed Dept Rep, Decision No. 18,370; Appeal of R.M. and C.M., 63 id., Decision No. 18,344; Appeal of J.F., 61 id., Decision No. 18,129).  Moreover, respondent cannot seek refuge in the continuing danger/ongoing threat of disruption exception as it failed to indicate such in the written notice (Appeal of L.O., 62 Ed Dept Rep, Decision No. 18,267; Appeal of T.F., 60 id., Decision No. 17,916; Appeal of a Student with a Disability, 56 id., Decision No. 17,111).  Thus, the short-term suspension must be expunged from the student’s record (see Appeal of J.F., 61 Ed Dept Rep., Decision No. 18,129; Appeal of a Student with a Disability, 58 id., Decision No. 17,610).

Turning to the long-term suspension, in cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so shocking to the conscience as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055; Appeal of C.N. and C.N., 60 id., Decision No. 17,954).  This analysis generally considers the nature of a student’s offense, their age and developmental level, prior disciplinary history (if any), the extent to which suspension is necessary to ensure the safety of the school community, the extent to which the district has attempted to help the student learn to assume and accept responsibility for their behavior, and other equitable factors (see e.g. Appeal of B.A., 62 Ed Dept Rep, Decision No. 18,209; Appeal of K.P., 61 id., Decision No. 18,055; Appeal of N.V.D., 60 id., Decision No. 17,985).  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).

This appeal largely centers on the nature of the student’s conduct.  The student was charged with, among other charges, making a threat of school violence and disruptive behavior.[2]  A “[t]hreat of school violence” is defined in respondent’s code of conduct as “a verbal, telephoned, written or electronic message of a threat of violence on school property or at a school related function.”  “Disorderly conduct” is defined as “behaving in a violent or seriously inappropriate manner.”

At the long-term suspension hearing, respondent offered the testimony of the high school principal and a recording of the video.  The principal testified that the student admitted posting the video to an unidentified police officer, who told another police officer, who then told the principal.  The video, which depicts a different student, contains the student’s name at the top of the screen.  The principal testified that he did not know what platform the student used to share the video and had “no idea” why it featured the student’s name.  The principal further testified that he received the video by text from a football coach and opined that a reasonable twelfth grader would know that the video would have become widely shared.

While the hearing officer permissibly afforded probative weight to the student’s hearsay admission,[3] the district failed to provide contextual evidence concerning the video’s creation and distribution.  The district presented no evidence as to how the student came into possession of the video, his motive in posting it, or the audience with whom it was shared.  Without such evidence, it is impossible to ascertain whether the student’s conduct was “extremely serious” or “inherently threatened the safety and well-being” of others (compare Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383).

I find that the nature of the student’s offense (as much as can be ascertained from the record) considered alongside the other factors in the analysis supports a finding that the discipline imposed was inappropriately punitive.  While the student was a high school senior capable of understanding the nature of his misconduct, his disciplinary history consisted of two minor issues that the hearing officer deemed irrelevant to the conduct discussed herein.  Moreover, there is no evidence that the district attempted to help the student learn to assume and accept responsibility for his behavior.[4]  Under these circumstances, I find an eight-month suspension shocking to the conscience (see Appeal of E.R., 63 Ed Dept Rep, Decision No. 18,309; Appeal of B.A., 62 id., Decision No. 18,209; Appeal of K.P., 61 id., Decision No. 18,055).[5]  Therefore, the long-term suspension must be expunged from the student’s record.[6]

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

THE APPEALS ARE SUSTAINED.

IT IS ORDERED that respondent expunge any reference to the short- and long-term suspensions at issue in these appeals from the student’s record.

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