Appeal of T.H., on behalf of his son L.H., from action of the Board of Education of the Miller Place Union Free School District regarding student discipline.

Decision No. 17,049

(February 27, 2017)

Mary C. Hartill, Esq., attorney for petitioner

Guercio & Guercio, LLP, attorneys for respondent, Randy Glasser, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals his son’s (“L.H.”) suspension from school by the Board of Education of the Miller Place Union Free School District ("respondent").  The appeal must be sustained in part.

Petitioner’s son attended respondent’s North Country Road Middle School during the 2012-2013 school year.  The record indicates that on October 22, 2012, L.H. was repeatedly being teased by another student who called him a “rapist.”  Also on that day, petitioner’s son and that same student got into a minor physical altercation.  Petitioner’s son reported these incidents of bullying and harassment to school district staff, including the building principal.  The building principal attests that he addressed these incidents with the other student and implemented any necessary and appropriate discipline. 

Later that day during a class, L.H. was given an assignment to write an essay entitled “Dinosaur in the Backyard.”  The topic was to “Imagine you wake up and saw a dinosaur in your backyard.  Describe what you see and do.”  Petitioner’s son was provided with a worksheet to complete the assignment that included an illustration of a dinosaur, which petitioners characterize as “suggesting that this fictional creature is dangerous and violent.”  L.H. wrote:

It would kill everyone I hated.  Then I would have it kindly steal the food from the bakers.  Then I would have it blow up the places I hate.... (The essay then describes the places and people L.H. allegedly hated, including classmates and staff).  Then I would kill[.][1]

The essay was handed in to L.H.’s teacher.  L.H. was thereafter brought to the principal’s office and his mother was summoned to school. 

The record indicates that both the dean of students and the building principal spoke with L.H.’s mother and/or petitioner by telephone about the incident.  Later that day, the building principal, Matthew Clark, hand-delivered to L.H.’s mother a written letter containing a proposed suspension of two days, October 23 and 24, 2012, and participation in “school instruction at the Alternative Learning Center [“ALC”]” on October 25, 2012.  Additionally, this letter stated that L.H. was being suspended for violating respondent’s district code of conduct by “writing a threatening statement” and that L.H.’s parents had a right to request an informal conference with Mr. Clark, including making statements and questioning complaining witnesses. 

Petitioner requested to have such an informal conference.  The record indicates that petitioner agreed to an 8:30 a.m. meeting at L.H.’s school on October 23, 2012.  At the informal conference, L.H. admitted writing the essay.  By letter dated October 23, 2012, Mr. Clark wrote that, based on their discussions and the informal conference, L.H. was to receive the two-day suspension for “writing a threatening statement.” 

That same day, petitioner filed an administrative appeal with respondent’s superintendent of schools.  By letter dated November 29, 2012, petitioner’s appeal was denied.  By petition dated December 12, 2012, petitioner and L.H.’s mother appealed to respondent board.  Thereafter, by letter dated January 24, 2013, respondent board also denied petitioner’s appeal.  Petitioner commenced the instant appeal on February 22, 2013.

Petitioner contends that respondent violated his son’s right to due process and a fair informal conference, alleging that he was provided with insufficient notice prior to L.H.’s suspension pursuant to Education Law §3214(3)(b)(1).  Petitioner argues that his son’s essay was not made with threatening intent against any individual or place.  Moreover, petitioner asserts that the conduct in question should be viewed in light of the facts that it involved a fictional essay about a dinosaur, which was assigned on a day where L.H. was being bullied, and that L.H. felt that the school’s staff was not responding adequately.  Petitioner also alleges that the penalty imposed was disproportionate to the offense.  Petitioner further argues that there were procedural defects regarding the appeal to the district’s superintendent.  Petitioner explains that Mr. Clark’s letter stated that a superintendent’s determination would be made in 10 days, the district’s code required a determination within 30 days, and the actual determination was not issued until 37 days after the appeal was commenced.  Petitioner also states in the petition that district staff failed to properly intervene in stopping the bullying of his son and to protect him as required under the “Dignity Act.”   Petitioner seeks an order terminating and annulling his son’s suspension, expunging the suspension from L.H.’s school records, and such other relief as I deem proper.

Respondent maintains that petitioner’s son was afforded all the due process to which he is entitled and that the suspension is appropriate and supported by competent and substantial evidence.  Respondent maintains that the notice provided was sufficient and occurred prior to the suspension.  Nevertheless, respondent argues in the alternative that, even if the notice occurred after the suspension began, it was still sufficient because petitioner chose the time of the informal conference to be 8:30 a.m.[2] and petitioner’s son posed a continuing threat to the school community.  Respondent acknowledges that Mr. Clark’s letter provided an improper timeframe for the superintendent’s determination of petitioner’s appeal and explains that it was not get issued within 30 days because of Hurricane Sandy and an Executive Order issued by Governor Cuomo tolling statutes of limitations during recovery from that hurricane.  Respondent argues that petitioner’s reply was untimely and should be disregarded.  Respondent asserts that the suspension was lawful and the penalty was proportionate to the offense.  Respondent notes that L.H. had prior instances of disciplinary issues. 

Preliminarily, 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).  Petitioner’s son’s suspension has already been served and thus the appeal must be dismissed as no meaningful relief can be provided in that regard.  However, since petitioner also seeks expungement of his son's school records, the appeal is not moot as to that issue.

Respondent objects to petitioner’s reply for untimeliness.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  The answer in this matter was served by mail upon petitioner’s attorney on March 11, 2013.  The reply was served upon respondent’s attorney by mail on March 26, 2013.  I find that petitioner’s reply was due to be served on March 25, 2013 and therefore it is untimely.  However, since respondent has not shown that it will suffer any prejudice by this one-day delay and submits a sur-reply (which presumably responds fully to petitioner’s reply) for consideration pursuant to §276.5 of the Commissioner’s regulations, I will excuse petitioner’s lateness and accept both the reply and sur-reply for consideration.

Even though I am accepting the sur-reply and reply for consideration in the instant appeal, I note that additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

Likewise, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply and sur-reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, I note that 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 F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823). 

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).

First, petitioner argues that L.H.’s due process rights were violated because the notice provided by Mr. Clark on October 22, 2012 failed to provide adequate detail of the charges against his son.  I note that the October 22, 2012 letter stated that L.H. was being charged “for writing a threatening statement.”  This notice also detailed petitioner and his son’s mother’s right to have an informal conference and to question complaining witnesses.  Therefore, I find that the notice provided a description of the incident for which the suspension was proposed and informed petitioner of the availability and nature of an informal conference with the building principal at which he could question complaining witnesses (8 NYCRR §100.2[l][4]).

However, petitioner further argues that the informal conference with Mr. Clark did not occur prior to the commencement of L.H.’s suspension.   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]).  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 record indicates that both the dean of students and the building principal spoke with L.H.’s mother and/or petitioner by telephone about the incident, and petitioner was provided with the above-discussed written notice, which was hand-delivered to his home after school hours on October 22, 2012 by Mr. Clark.  The record also indicates, however, that the informal conference was held at 8:30 a.m. on October 23, 2012, the first day of L.H.’s suspension, and a day on which the academic day began at 7:30 a.m.  Therefore, I find that the informal conference did not occur prior to the beginning of L.H.’s suspension from school on October 23, 2012.  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]). 

Respondent argues herein that the late commencement of the informal conference was justified because L.H.’s conduct posed a “continuing danger” to others.  On this record, I find this argument unavailing.  The October 22, 2012 written notice/proposed suspension letter did not assert that L.H.’s presence in school posed a continuing danger to others or an ongoing threat to the disruption of the academic process.  Where the notice of suspension does not assert, and the record does not indicate, that the student’s presence in school posed a continuing danger to others or an ongoing threat of disruption, the principal is obligated to provide the notice and opportunity for an informal conference before suspending L.H. (Appeal of J.H. and T.H., 54 Ed Dept Rep, Decision No. 16,688; Appeal of E.B. and F.B., 53 id., Decision No. 16,545; Appeal of R.F. and D.F., 52 id., Decision No. 16,369).  Respondent’s belated attempt to assert herein that L.H. was a “continuing danger” to others does not correct its error in suspending him without first providing a proper informal conference (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; see e.g., Appeal of L.L., 51 id., Decision No. 16,334).

In this case, the principal imposed only a two-day suspension from school for “writing a threating statement,” which undercuts respondent’s argument that it viewed L.H.’s statement as indicating that his presence in school would pose a danger to others.  I agree with respondent that there are circumstances in which school officials must be able to suspend a student immediately without first conducting an informal conference, which is the very purpose of the exception for dangerous or disruptive students in Education Law §3214(3)(b) and 8 NYCRR §100.2(l)(4) (see e.g., Appeal of L.I., 50 Ed Dept Rep, Decision No. 16,195).  Had respondent treated L.H.’s letter as a serious or imminent threat of violence, it would have been justified in suspending L.H. without first conducting an informal conference, but its own behavior indicates that it was willing to allow L.H. to return to class after a two-day suspension from school and a one-day in-school suspension.  Even though the delay in holding the informal conference was minimal, respondent was obligated to conduct the informal conference before the suspension began (Appeal of J.V.O., Jr., 50 Ed Dept Rep, Decision No. 16,234).  Respondent’s argument that petitioner was not prejudiced by the delay is to no avail, since commencing the suspension prior to the informal conference effectively deprived petitioner of the opportunity to have the principal review the matter with him and decide whether to impose any suspension.  I find that respondent violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4), and that, as a result, the two-day suspension must be annulled.

Finally, I must dismiss petitioner’s request for expungement of the in-school suspension imposed on October 25, 2012.  Respondent required L.H. to participate in an in-school instruction program at the ALC.  In his affidavit, Mr. Clark states that this day was intended as a chance for petitioner’s son to meet with the school psychologist and to catch up on any missed work.  In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598). 

The record indicates that petitioner met with Mr. Clark as part of the informal conference process and petitioner was informed of Mr. Clark’s intention to send L.H. to the ALC for this last day.  Thus, on the record before me, I conclude that petitioner and L.H. were afforded adequate due process regarding the penalty imposed for October 25, 2015, and imposition of the penalty was reasonable and fair.  L.H. admitted to the misconduct, and petitioner has failed to meet his burden of proving that respondent’s imposition of the in-school suspension was arbitrary or capricious or in violation of law.

In light of this disposition, I need not address petitioner’s remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of L.H. on October 23 and 24, 2012 be expunged from L.H.’s record.

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