Appeal of L.Z. and M.S., on behalf of their son E.Z., from action of the Board of Education of the Great Neck Union Free School District regarding student discipline.

Decision No. 17,034

(January 27, 2017)

Howard R. Birnbach, Esq., attorney for petitioners

Frazer & Feldman, LLP, attorneys for respondent, Joseph Lily, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Great Neck Union Free School District (“respondent”) to impose a suspension upon their son.  The appeal must be sustained in part.

During the 2013-2014 school year, the principal of Great Neck South Middle School received information regarding a social media account created by E.Z. in the name of one of the middle school teachers.  Thereafter, the principal conducted an investigation into the matter, including meeting with E.Z. and petitioner M.S. on March 24, 2014.[1]  During the meeting, E.Z. admitted that he had created the profile and that he had written the inappropriate comments, attributed to the teacher, that were contained therein.  At the close of the meeting, the principal informed E.Z. and petitioner M.S. that E.Z. would be suspended for two days, beginning March 24, 2014; written notice of the suspension, which included a statement of petitioners’ right to an informal conference with the principal at which they could question complaining witnesses, was hand-delivered to their home the same day.

The record indicates that, after imposition of the two-day suspension, additional information came to the attention of the principal, namely the large extent to which the profile created by E.Z. was known to the student population, the fact that the profile “had become a popular topic of discussion among students in the school building”, and the resulting embarrassment to the subject teacher.  As a result, the principal decided to increase E.Z.’s suspension from two days to five days.  Written notice of the five-day suspension was hand-delivered to petitioners’ home on the morning of March 25, 2014.  In the second notice, the principal advised petitioners that he had determined that E.Z.’s “continued presence in school poses a continuing danger and/or an ongoing threat of disruption to the academic process” and that his suspension would begin “immediately.”

By letter from their attorney dated March 26, 2014, petitioners commenced an appeal to the superintendent of E.Z.’s suspension in which they argued that the March 24 notice was received on the date of the suspension and that the suspension “was expanded without an opportunity to be heard.”  The superintendent, by return correspondence dated April 7, 2014, denied petitioners’ appeal.  Subsequently, on April 9, 2014, petitioners appealed the superintendent’s decision to respondent board.  Respondent board upheld the determination of the superintendent and denied petitioners’ appeal; petitioners were notified of the same by letter dated May 14, 2014.  This appeal ensued.

Petitioners challenge the suspension and seek to have it expunged from E.Z.’s records.  Petitioners claim that the notice of suspension was untimely in that the suspension was “almost complete” before they received notice of the alleged infraction.  Petitioners further claim that they were deprived of their right to due process because no hearing or administrative proceeding occurred prior to the suspension, nor was there a pre-suspension conference or written statement of alleged wrongdoing.  Petitioners also claim that there was no explanation given for the denial of the appeals and that the penalty is not in proportion to the alleged wrong.

Respondent generally denies any wrongdoing and asserts that its actions were in compliance with the requirements of the Education Law, the Regulations of the Commissioner, and district policy.  Respondent contends that the notice of E.Z.’s suspension was timely and advised petitioners of their right to an informal conference prior to the imposition of the suspension.  Additionally, respondent argues that petitioners were not denied their right to due process as they were not entitled to a hearing because E.Z. was not suspended for more than five days.  Finally, respondent argues that petitioners failed to exhaust their administrative remedies with regard to several of the claims that are raised for the first time in the instant appeal, and that, to the extent such claims were not raised in previous appeals, they have been waived by petitioners.  For all of the above-stated reasons, respondent contends that the appeal should be dismissed.

I will first address a procedural issue.  Respondent contends that the arguments made herein by petitioners which were not previously raised in both the appeal to the superintendent and the appeal to respondent board were waived by petitioners and must be dismissed.  Petitioners’ arguments in the appeal to respondent board are almost identical to those raised in the petition filed in this appeal, except for an additional claim in this appeal that there was no written statement of wrongdoing and an added claim regarding the lack of explanation upon denial of each of petitioners’ appeals.  To the extent petitioners attempt to argue herein that there was no written statement of wrongdoing provided prior to the suspension and that the superintendent’s denial of petitioners’ appeal was not sufficiently detailed, such claims were not raised in the underlying appeals and may not be raised in an appeal before the Commissioner under Education Law §310 (see Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451; Appeal of D.V., 44 id. 263, Decision No. 15,168).  To the extent petitioners claim that respondent board’s denial of petitioners’ appeal lacked explanation, however, I find that such argument is properly raised for the first time in the instant appeal.

To the extent petitioners argue that they were entitled to a hearing regarding E.Z.’s short-term suspension, I note that the full hearing procedures set forth in Education Law §3214(3)(c) do not apply to suspensions of five days or less; however, school districts are required to impose such discipline consistent with fundamental fairness (see e.g., Appeal of Duffy, 36 Ed Dept Rep 257, Decision No. 13,718).  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 (Educ 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 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 (Educ 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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

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 (see e.g. Appeal of a Student with a Disability, 47 Ed Dept Rep 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 J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

With respect to petitioners’ claims regarding the notice of suspension, according to the affidavit of the middle school principal, the notice of the two-day suspension was hand-delivered to petitioners’ home on March 24, 2014 by a school security guard.  A record of such delivery was made in the security log maintained by the security guard in the regular course of business.  The middle school principal also avers that the revised notice, notifying petitioners of the five-day suspension, was hand-delivered to petitioners’ home at approximately 9:38 a.m. on March 25, 2014.  As noted above, written notice and the opportunity for an informal conference must take place prior to the suspension, 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.  I note that the first notice, delivered on March 24, 2014, indicated only that E.Z. would be suspended for two days (March 24 and 25); it did not state that E.Z.’s presence in the school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process which would allow the notice and opportunity for an informal conference to take place as soon as practicable after the suspension began.  Therefore, petitioners should have been provided timely written notice and an opportunity for an informal conference with the principal prior to the imposition of the suspension on March 24 (see Appeal of L.L., 51 Ed Dept Rep, Decision No. 16,334; Appeal of L.P., 50 id., Decision No. 16,252; Appeal of J.V.O., Jr., 50 id., Decision No. 16,234).  Accordingly, on this record, I cannot conclude that the first notice was timely and notified petitioners of their right to an informal conference prior to the commencement of E.Z.’s two-day suspension on March 24, 2014.  The first two days of the suspension, March 24 and 25, 2014, must therefore be expunged from E.Z.’s record (Appeal of E.B. and F.B., 53 Ed Dept Rep, Decision No. 16,545; Appeal of T.T. and K.T., 52 id., Decision No. 16,386; Appeal of R.F. and D.F., 52 id., Decision No. 16,369).

The revised notice, delivered on March 25, 2014, indicated that E.Z. would be suspended for five days (March 24 through March 28) and stated that E.Z.’s continued presence in school posed a continuing danger and/or an ongoing threat of disruption to the academic process.  Respondent maintains that the revised notice “superseded” the March 24 notice, purportedly to “cure” the defect in the initial notice.  As noted, the record indicates that the revised notice was provided to petitioners at approximately 9:38 a.m. on March 25 - the second day of E.Z.’s suspension.  While the revised notice extended the length of E.Z.’s suspension to five days, I cannot conclude that respondent’s inclusion, at that juncture, of its determination that E.Z. posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process operated retroactively to correct its error in improperly suspending E.Z. on March 24 and 25 without first providing the required written notice and an opportunity for an informal conference prior to the suspension (see Appeal of L.L., 51 Ed Dept Rep, Decision No. 16,334).  As noted above, those two days of suspension must, therefore, be expunged from his record.  However, I find that, through the revised March 25 notice, which did include a determination that E.Z. posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process, respondent provided sufficient notice for E.Z.’s immediate suspension from March 26 through March 28, 2014 and I decline to order expungement of the same.

Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).  In the matter at hand, E.Z. admitted to creating the social media page and to writing the statements contained therein that are attributed to a middle school teacher.  E.Z. did so in a meeting with the principal and his mother, petitioner M.S.  Therefore, I find that there is sufficient proof that E.Z. committed the conduct in question.

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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).  Petitioners argue that the suspension imposed was disproportionate to the alleged wrongdoing and point out that E.Z. has no record of prior discipline, that his conduct did not constitute a criminal act or threat to the public safety, and did not disrupt the educational process.  However, on this record, I find that the suspension imposed was not excessive.  E.Z. was charged with and admitted to the creation of a social media page which contained a teacher’s name, his photo, and inappropriate statements attributed to the teacher.  Respondent claims, and petitioners do not refute, that the widespread knowledge and discussion of the page amongst the student population resulted in embarrassment for the teacher and disruption of the educational process.  Given the seriousness of E.Z.’s conduct and its impact, I do not find that the penalty was so excessive as to warrant the substitution of my judgment in this instance (Appeal of F.L. and D.L., 55 Ed Dept Rep, Decision No, 16,188; Appeal of E.S., 50 Ed Dept Rep, Decision No. 16,105).

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the school records of E.Z., any reference relating to his suspension on March 24 and 25, 2014.

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