Appeal of L.L., on behalf of her daughter S.L., from action of the Board of Education of the Shoreham-Wading River Central School District regarding student discipline.

Decision No. 16,334

(March 9, 2012)

Guercio & Guercio, LLP, attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

KING, JR., Commissioner.--Petitioner brings this appeal against the Board of Education of the Shoreham-Wading River Central School District (“respondent”) challenging a determination by respondent’s high school principal to suspend her daughter, S.L.  The appeal must be sustained.

During the 2009-2010 school year, S.L. was a 10th grade student at respondent’s high school.  On the morning of April 9, 2010, S.L. was involved in a physical altercation with another female student in the cafeteria.  According to the record, during lunch period the girls were initially seated at separate tables, but the other student subsequently approached S.L.’s table and began a verbal exchange with her.  S.L. then stood up and continued the verbal exchange with the other student.  A lunch monitor directed them to stop, but they ignored her and a physical altercation ensued.  An assistant principal responded to the lunch monitor’s call for assistance and escorted both girls to the nurse’s office.

Shortly thereafter, the assistant principal called petitioner to advise her of the incident and request that she come to the school to pick up S.L. because the principal was suspending her for three days, effective immediately.  Both girls received a three-day out-of-school suspension as a result of this incident.

When petitioner arrived at the school, she informed the assistant principal that she disagreed with respondent’s policy of imposing the same penalty on both the victim and the perpetrator in a physical altercation incident.  She also requested an immediate informal conference with the principal and the parents of the other student.

The assistant principal indicated that he would advise the principal of petitioner’s requests and further advised her that an informal conference was scheduled for April 12, 2010.  He asked petitioner to sign a document, dated April 9, 2010, acknowledging receipt of a letter of suspension, also dated April 9, 2010, that stated, interalia, that S.L. was suspended for three school days beginning April 9 through April 13, 2010.  Petitioner signed the document only after the assistant principal amended it to include the date of the informal conference.

On April 12, 2010, petitioner met with the principal and two assistant principals to discuss the incident and S.L.’s suspension.  Petitioner reiterated her disagreement with respondent’s policy of imposing the same penalty on both the victim and perpetrator involved in a physical altercation.  Petitioner did not contest S.L.’s suspension, but requested that the principal extend the other student’s suspension, which he declined to do. 

According to petitioner, on the last day of S.L.’s suspension, April 13, 2010, an unsuccessful attempt was made to deliver a certified letter from the district to her home.  The letter was returned to the post office and petitioner subsequently retrieved it on or about April 20, 2010.  The letter, dated April 12, 2010, confirmed S.L.’s suspension and stated, interalia, that S.L. had been involved in a physical altercation with another student and that her presence in the school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  Neither petitioner nor respondent have submitted a copy of this letter as part of their respective papers in this appeal.  However, there is no dispute between the parties as to the actual contents of the letter.

On April 21, 2010, petitioner left a message with the deputy superintendent’s office requesting redaction of the statement in the April 12, 2010 letter that her daughter posed continuing danger or an ongoing threat of disruption to the academic process.  She asserted that if the request was denied, she would file an appeal to the Commissioner.  Later that same day, the deputy superintendent telephoned petitioner and discussed the April 12, 2010 letter and the underlying incident with her.  The deputy superintendent advised petitioner that she would contact her again after she had reviewed the letter at issue.

On April 22, 2010, the deputy superintendent telephoned petitioner to inform her that she had reviewed the letter and considered it standard and appropriate for a student who had been suspended as a result of involvement in a physical altercation.  During this conversation, petitioner made additional complaints against the district.  The deputy superintendent advised petitioner to put her complaints in writing and send them to her attention.

By letter dated April 22, 2010, petitioner reiterated her request that the continuing danger or an ongoing threat of disruption to the academic process language be redacted from the April 12, 2010 letter.  She also asserted, interalia, that the language had only been included in the April 12, 2010 confirmation of suspension letter to justify S.L.’s suspension prior to providing petitioner with an opportunity for an informal conference.

By letter dated April 27, 2010, the deputy superintendent advised petitioner that the language in the April 12, 2010 letter would not be revised.  This appeal ensued.

Petitioner requests that S.L.’s suspension be annulled and expunged from her record.  She claims that the statement that her daughter posed “a continuing danger to persons or property or an ongoing threat of disruption to the academic process” was belatedly included in the April 12, 2010 confirmation of suspension letter only to justify S.L.’s immediate removal and suspension from school prior to providing petitioner with an opportunity for an informal conference.

Respondent asserts that the petition should be dismissed due to petitioner’s failure to exhaust administrative remedies.  Respondent also maintains that the record supports the determination that S.L. posed an ongoing threat of disruption to the academic process and, therefore, the language in the April 12, 2010 confirmation of suspension letter was appropriate and the suspension should be upheld.  Respondent claims that the petition should be dismissed because petitioner has failed to meet her burden of proof.

I must first address two procedural issues.  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836.  The suspension has been served and, therefore, the appeal is moot except to the extent petitioner seeks expungement of S.L.’s records (Appeal of a Student with a Disability, 49 Ed Dept Rep 452, Decision No. 16,079; Appeal of a Student Alleged to Have a Disability, 49 id. 302, Decision No. 16,034; Appeal of V.L., 44 id. 160, Decision No. 15,132).

In addition, I decline to dismiss petitioner’s claims concerning the short-term suspension for failure to exhaust administrative remedies.  Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578; Appeal of M.A., 45 id. 206, Decision No. 15,303).  While respondent’s code of conduct requires an appeal to the board, the principal’s April 9, 2010 suspension letter contains no notice of such requirement.  Instead, it merely states: “Kindly refer to the [code] with regard to student rights and responsibilities concerning suspensions.”  I find that this oblique reference to the code in the suspension notice is insufficient to provide notice of a restrictive policy of administrative exhaustion (Appeal of a F.M., 48 Ed Dept Rep 244, Decision No. 15,849).  Accordingly, I will not dismiss this appeal for failure to exhaust administrative remedies.

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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of a F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  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]).

By letter dated April 9, 2010, the principal provided written notice of S.L.’s proposed suspension to commence that day, the reasons therefor and the right to an informal conference.  The letter did not state that S.L.’s presence in the school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process, yet S.L. was suspended immediately as of the date of the written notice.  Petitioner, thus, should have been provided with an opportunity for an informal conference prior to S.L.’s suspension (seeAppeal of L.P., 50 Ed Dept Rep, Decision No. 16,252; Appeal of J.V.O., Jr., 50 Ed Dept Rep, Decision No. 16,234).

Moreover, I find respondent’s belated attempt to revise the written notice in its April 12, 2010 letter by including the rationale for S.L.’s immediate suspension did not correct its error in suspending S.L. without first providing the required informal conference.  Accordingly, the three-day suspension must be annulled and expunged from S.L.’s record.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent’s suspension of S.L. from April 9 to April 13, 2010 be expunged from her record.

END OF FILE.