Appeal of B.L.G., on behalf of his son J.D.G., from action of the Board of Education of the Royalton-Hartland Central School District regarding student discipline.

Decision No. 16,101

(July 27, 2010)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Bernard B. Freedman, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the suspension of his son, J.D.G., by the Board of Education of the Royalton-Hartland Central School District (“respondent”).  The appeal must be sustained in part.

During the 2007-2008 school year, J.D.G. was a ninth grade student at respondent’s high school.  Early on the morning of January 3, 2008, petitioner received a call from the assistant principal advising him that J.D.G. had made a threat against the school and ordering petitioner not to bring J.D.G. to school that day.  Later that morning, the assistant principal phoned petitioner and advised him that J.D.G. would be suspended.  On January 5, 2008, petitioner received two letters dated January 3, 2008, both signed by the principal and assistant principal notifying him that J.D.G. was being suspended from January 3 through January 9, 2008.  A superintendent’s hearing was held on January 10, 2008, at which J.D.G. entered a no contest plea.  By letter dated January 17, 2008, the superintendent notified petitioner that J.D.G. was being suspended through the first marking period of the 2008-2009 school year with a provision for early re-admission based on participation in counseling, a threat assessment and alternative education.  The decision informed petitioner that he could appeal to respondent within 10 days of receipt of the decision.  Petitioner attempted to appeal the superintendent’s decision on March 31 and April 30, 2008.  Petitioner was notified by letter dated May 1, 2008 that respondent would hear his appeal in executive session on May 8, 2008.  By letter dated May 12, 2008, respondent denied petitioner’s request to appeal the superintendent’s determination.  This appeal ensued.

With respect to the short-term suspension, petitioner argues that the assistant principal has no authority to impose a suspension, that the notice was deficient and untimely and that J.D.G. was improperly excluded from school in excess of five days prior to the superintendent’s hearing.  With respect to the long-term suspension, petitioner asserts that the superintendent’s hearing notice was inadequate, that the hearing officer’s decision contained inaccuracies and that the hearing resulted in a term of suspension which was open-ended with no set date to return to school.  Petitioner further contends that J.D.G.’s return to school was improperly conditioned upon participating in counseling and having a threat assessment, that alternative education was not provided in a timely manner and that the penalty was excessive. He seeks annulment and expungement of the suspension, a date certain by which J.D.G. may attend regular classes and removal of any record or reference to counseling and threat assessment in J.D.G.’s record.  Petitioner further seeks an order requiring respondent to comply with Education Law §3214 when providing alternative education.

Respondent argues that petitioner’s appeal was untimely.  Respondent also claims that J.D.G. admitted to the objectionable conduct, that he had a fair opportunity to be heard at a properly noticed hearing and that the suspension term was appropriate.

Petitioner objects to respondent’s answer as untimely.  Respondent’s counsel requested and received an extension of time to serve an answer from my Office of Counsel until June 20, 2008.  The answer was served on petitioner on June 19, 2008.  Therefore, I will accept the answer as timely.

Respondent argues that petitioner’s appeal of the superintendent’s decision was untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).

Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination.  Accordingly, the decision of a superintendent to suspend a student in excess of five school days following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of K.M., 45 id. 62, Decision No. 15,261).

While a district may adopt policies governing suspension procedures, such policies must be reasonable and consistent with the rights of complainants under Education Law §310 to have disputes ultimately reviewed by the Commissioner (Appeal of M.T., 48 Ed Dept Rep 263, Decision No. 15,854; Appeal of Amara S., 39 id. 90, Decision No. 14,182).  Here, respondent refused to review the merits of the superintendent’s long-term suspension based upon its policy, which required petitioner to appeal to the board within 10 days of the superintendent’s suspension decision.   

In the Appeal of M.T., the Commissioner held that a rigid 10-day time period was not reasonable and consistent with the rights of complainants under Education Law §310 to have disputes ultimately reviewed by the Commissioner (Appeal of M.T., 48 Ed Dept Rep 263, Decision No. 15,854).  Administrative convenience cannot justify such a rigid time frame, after which a parent or student is denied the right to contest a long-term out-of-school suspension, with no discretion for excusing delay in an appropriate case (seeAppeal of M.T., 48 Ed Dept Rep 263, Decision No. 15,854).   As such, I find that respondent’s policy is inconsistent with the requirements of the Education Law and sound educational policy and must be revised.  Accordingly, I find respondent’s rejection of petitioner’s appeal as untimely to be unreasonable.  Petitioner commenced this appeal by serving the petition on May 20, 2008, which is within 30 days of respondent’s denial of the appeal.  Therefore, I find that this appeal was timely commenced.

To the extent petitioner seeks a date certain for J.D.G to attend school, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Since J.D.G. has served the suspension, the request to provide a date certain is not meaningful relief that may be granted and must be dismissed as moot (Appeal of M.S., 44 Ed Dept Rep 478, Decision No. 15,237).  The appeal is not moot, however, insofar as petitioner seeks expungement of J.D.G.’s short-term and long-term suspensions from his record.

As to the short-term suspension, petitioner claims that the notice was insufficient and untimely.  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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).  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 imposed the suspension in the first instance, and who 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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550). 

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure 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 (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).  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 a Student with a Disability, 45 Ed Dept Rep 531, Decision No. 15,406; Appeals of E.R., 45 id. 487, Decision No. 15,389). 

Here, the district provided written notice of J.D.G.’s suspension in the form of two letters -- one by regular mail and the other by certified mail.  Both were dated January 3, 2008 and received by petitioner on January 5, 2008.  Although the district did notify petitioner by telephone of the short-term suspension, written notice was not provided in a manner reasonably calculated to assure receipt within 24 hours of the decision to suspend.  Therefore, I find that respondent did not comply with the notice requirements of Education Law §3214(3)(b).

Further, J.D.G. was initially suspended in excess of five days.  J.D.G. was not permitted to attend school on the date of his long-term suspension hearing, January 10, 2008, which extended the short-term suspension to six days.  Petitioner contends that the hearing officer erroneously referred to the date of the event as January 4, instead of January 3, to give the appearance of a five-day suspension. Nevertheless, J.D.G.’s suspension from January 3 through January 10, 2008 must be annulled and expunged from J.D.G.’s record.  

With respect to the long-term suspension, petitioner contends that the hearing notice did not state that he had a right to review the anecdotal record before the hearing.  However, in his reply, petitioner states that since his counsel did not object to that evidence, he is not seeking relief as to its submission.  Accordingly, I consider this claim to be withdrawn.

Petitioner also contends that J.D.G.’s penalty was arbitrary and excessive and that it was open-ended and his return to school was conditional.  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 excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of J.C., 46 Ed Dept Rep 562, Decision No. 15,596; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).  The evidence demonstrates that J.D.G. had been contemplating details of how to carry out a school shooting.  Evidence was presented attesting to the substantial disruption this created at the school, including an evacuation of the school property.  J.D.G. was suspended through the first period of the following school year.  In light of the severity of this conduct, I find no basis to substitute my judgment as to the length of the suspension.

Petitioner’s claim that respondent improperly conditioned J.D.G.’s return to class upon completing counseling and a threat assessment has no merit.  Education Law §3214(3)(e) provides in pertinent part:

Procedure after suspension ... where a pupil has been suspended for cause, the suspension may be revoked by the board of education whenever it appears to be for the best interest of the school and the pupil to do so.  The board of education may also condition a student’s early return to school and suspension revocation on the pupil’s voluntary participation in counseling ....” (emphasis added)

The emphasized language was added by Chapter 170 of the Laws of 2006 to expressly permit a board of education to condition a student’s early return to school and suspension revocation on his or her voluntary participation in counseling.  In this case, J.D.G. would be eligible to apply for an early return to school if he engaged in private counseling and participated in a threat assessment by the district.  I therefore find that respondent acted within its authority under the 2006 amendment.

Finally, petitioner also requests an order requiring the respondent to comply with Education Law §3214 with respect to the provision of a alternative education.  Education Law §3214(3)(e) provides that where a student has been suspended, “immediate steps” shall be taken for his or her attendance upon instruction.  The term “immediate” does not mean instantaneously, but it does mean that a school district must act promptly (Appeal of M.K. and S.K., 45 Ed Dept Rep 424, Decision No 15,373; Appeal of W.H., 45 id. 96, Decision No. 15,269; Appeal of D.F.B., 43 id. 496, Decision No. 15,064).  The record indicates that J.D.G. did not receive any alternative education until January 14, 2008, seven school days after his initial suspension.  Respondent maintains that the BOCES service it used for alternative education was unable to immediately find an instructor, and one was provided as soon as one was available.  Petitioner has not demonstrated that respondent has a policy or practice of not providing alternative instruction in a timely manner, so I decline to order it to do so.  However, I remind respondent of its obligation to provide prompt alternative education in the future and ensure the availability of alternative education instructors.

I have considered petitioner’s remaining contentions and find that they have no merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the suspension of J.D.G. from January 3, 2008 through January 10, 2008, be annulled and expunged from his record; and

IT IS FURTHERED ORDERED that respondent revise its student discipline policies and procedures in accordance with this decision.

END OF FILE.