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Decision No. 18,545

Appeal of D.D., on behalf of her grandson, from action of the Board of Education of the City School District of the City of Buffalo regarding student discipline.

Decision No. 18,545

(January 28, 2025)

Buffalo Public Schools Office of Legal Counsel, Deonna Jones, Esq., attorney for respondent

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Buffalo (“respondent”) to impose discipline upon her grandson[1] (the “student”).  The appeal must be sustained to the extent indicated.

During the 2023-2024 school year, the student attended fourth grade in one of respondent’s elementary schools.  On November 6, 2023, the student brought marijuana onto the school bus.  Later that day, another student possessed marijuana on school premises.  The school investigated and learned that the student and other classmates had tasted this marijuana.  When petitioner arrived to pick up the student, the principal advised her verbally that he was being suspended.

On November 8, 2023, petitioner received a letter via regular mail alleging that the student “[h]it another student.”  On the following day, petitioner received a revised letter charging the student with “[p]ossession of alleged drugs.”  The letters indicated that the student was suspended for five days, identifying his return date as November 14, 2023.[2]  Both letters also stated that the student presented a continuing danger or ongoing threat of disruption.    

By letter dated November 11, 2023, respondent informed petitioner that a long-term suspension hearing had been scheduled.  The letter did not identify a date or a time for the hearing. 

On November 14, 2023, petitioner brought the student to school.  Petitioner was advised the student was still suspended and would be kept out of school until the conclusion of the long-term suspension hearing the next day, November 15, 2023, at 10:00 a.m.  A school employee provided petitioner with written notice of the hearing that identified the hearing date and time. 

The hearing, presided over by a hearing officer, convened as scheduled.  At the hearing, the student admitted that he brought the marijuana onto school property and that he and other students tasted it.  The hearing officer concluded the hearing without making a recommendation as to the appropriate measure of discipline.

In a written recommendation dated November 20, 2023, the hearing officer recommended that the student be suspended through November 24, 2023, returning on Monday, November 27, 2023.  Appeals to the superintendent and respondent were denied; this appeal ensued.

Petitioner challenges the timing and legal sufficiency of the short-term suspension and hearing notices.  Petitioner further asserts that respondent did not prove the student’s guilt through competent and substantial evidence.  Finally, assuming that the student committed the offense, the imposed penalty was excessive.  For relief, she seeks expungement of the suspension from the student’s record.

Respondent argues that the student’s suspension and the procedures by which it was imposed were appropriate.  Respondent further argues that the student admitted his guilt to the charge of possession of an illegal substance.

Initially, I must address a procedural issue.  Respondent asserts that the petition was improperly verified.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  A petition “shall be verified by the oath of at least one of the petitioners” (8 NYCRR 275.5; Appeal of Booker, 40 Ed Dep Rep 447, Decision No. 14,523).  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Here, while petitioner signed the required oath before a notary public, the notary merely signed above the words “Notary Public” and failed to comply with the technical requirements for notarization (see Executive Law § 137).  

Nevertheless, I decline to dismiss the appeal on this basis.  Respondent does not contend that petitioner did not swear to the truth of the allegations in the petition.  Unlike in Appeal of A.V. and N.V., the affidavit of verification indicates that petitioner was duly sworn and personally appeared before the notary (56 Ed Dept Rep, Decision No. 16,928).  In light thereof, I decline to dismiss the petition for this error of the notary public.[3]

Turning to the merits of the short-term suspension, 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 [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).

Although respondent was entitled to immediately suspend the student as a continuing danger,[4] it remained obligated to deliver written notice of the suspension to petitioner as soon as “reasonably practicable” (Education Law § 3214 [3] [b] [1]; 8 NYCRR 100.2 [l] [4]).  The parties agree that petitioner received two written notices of the short-term suspension on the third and fourth days of his suspension, respectively.  These efforts were insufficient to comply with respondent’s obligation (Appeal of A.D. and J.H.,63 Ed Dept Rep, Decision No. 18,391; Appeal of J.B.W., 62 id., Decision No. 18,205).  As such, petitioner has demonstrated that respondent failed to deliver legally sufficient notice as soon as reasonably practicable.  Consequently, the short-term suspension must be expunged from the student’s record.

Turning to the long-term suspension, petitioner first alleges that the district did not provide her with adequate notice of the charges.  A student may not be suspended “for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice” (Education Law § 3214 [3] [c] [1]).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against the student; rather, the charges need only be “sufficiently specific to advise the student ... of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing” (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Education, 91 NY2d 133, 140 [1997]; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  As long as students receive a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Matter of Board of Educ. of Monticello Cent. School Dist., 91 NY2d at 140).  

Both hearing notices provided to petitioner contained the following narrative:  “On or about, 11/6/2023, [the student] was in possession of an allegedly illegal substance.  [The student] allegedly gave it to another student to ingest. Student caused an unsafe learning environment in the building.”  I find that this language provided ample notice of the conduct with which the student was charged.[5]

Next, petitioner argues that she received insufficient notice of the hearing.  While “reasonable notice” varies with the circumstances of each case (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 139 [1997]; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,273; Appeal of F.W., 48 id. 399, Decision No, 15,897), one day’s notice has been held inadequate to provide an opportunity for a fair hearing (Matter of Carey v Savino, 91 Misc 2d 50, 51-52 [Sup Ct, Allegany County 1977]; Appeal of C.A., 45 Ed Dept Rep 388, Decision No. 15,360).  Here, petitioner received ample notice of the charges—but not the date when the hearing was to be held.  Ultimately, however, respondent informed petitioner of the hearing date a day beforehand.  The record reflects that petitioner understood the charges and was informed of her right to be represented by counsel.  Therefore, although respondent erred by omitting the date of the hearing on the notice, I find that petitioner nevertheless had sufficient time to review the charges (compare Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,273 [appeal sustained where no notice whatsoever delivered until, at most, one and one-half days prior to the hearing]).

Petitioner further contends that respondent did not prove the student’s guilt.  The decision to suspend a student from school pursuant to Education Law § 3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 140-141 [1997]; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37, 39 [3d Dept 2002]; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268 and Appeal of S.U., 57 id., Decision No. 17,159). 

Here, the student admitted to possession of marijuana on school property and tasting it.  The student further indicated that other fourth-grade students had access to, and tried, the marijuana.[6]  Therefore, I find that the district produced competent and substantial evidence of the student’s guilt.

Finally, petitioner claims that the penalty imposed was excessive and unsupported by the record.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383).  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).

Initially, I find that respondent lacked authority to suspend the student between November 14 and 20, 2023.  Education Law § 3214 (3) (c) indicates that a short-term suspension may not continue beyond five school days unless and until the student has been afforded an opportunity for a hearing and a determination adverse to the interests of that student has been made (Ross v Disare, 500 F Supp 928 [SD NY 1977]; Matter of MacDonald v Tompkins, 67 Misc2d 338 [Sup Ct, Onondaga County 1971]).  Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing sustaining a longer period of suspension is held within the initial five-day suspension period or an adjournment is requested by the student or parent (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652; Appeal of Spensieri, 40 id. 51, Decision No. 14,419).  Here, the district improperly continued the student’s suspension between November 14 and 20, 2023 without a determination by the superintendent imposing a longer suspension.  Therefore, those days of his suspension must be expunged from his record (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652).

The student’s long-term suspension added two additional days to his period of suspension:  November 21, and 22, 2023.[7]  His age, good standing, remorse, and lack of disciplinary history support a lenient penalty.  However, his conduct—bringing marijuana onto school property and sharing it with others—was extremely serious.  As such, I do not find a two-day suspension shocking to the conscience (see Appeal of T.F., 60 Ed Dept Rep, Decision No. 17,966).[8]  

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

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the short-term suspension at issue herein be expunged from the student’s record; and

IT IS FURTHER ORDERED that the long-term suspension at issue herein be modified to reflect suspension from November 21 through 22, 2023.

END OF FILE

 

[1] The record reflects that petitioner is the legal guardian of the grandchild at issue and, thus, has standing to bring this appeal.

 

[2] Respondent indicates in its answer that schools were closed on November 7 and 10, 2023.

 

[3] Additionally, I have excused respondent’s minimal delay in submitting its answer due to the extenuating circumstances of a tornado in respondent’s district.

 

[4] Petitioner does not contest respondent’s determination that the student presented a continuing danger or ongoing threat of disruption.

 

[5] Narrative charges alone, however, may lack precision as to what misconduct a student allegedly committed (Appeal of D.S., 61 Ed Dept Rep, Decision No. 18,072).

 

[6] Respondent introduced evidence at the hearing that it tested the substance and confirmed it was marijuana.  Even assuming that this report was inadmissible, as petitioner suggests, the student’s admission provides sufficient evidence that the substance was marijuana.

 

[7] Respondent’s schools were closed on November 23 and 24, 2023 for the Thanksgiving holiday.  While the superintendent issued her decision on November 20, 2023, the student should have been allowed to attend school that morning pending issuance of the decision.

 

[8] I commend respondent for suggesting various supports for the student during the disciplinary hearing, including a mentoring program and counseling.