Appeal of a STUDENT WITH a DISABILITY, by his parent, from action of the Board of Education of the Newfield Central School District regarding student discipline.

Decision No. 17,273

(December 5, 2017)

Sayles & Evans, attorneys for respondent, Conrad M. Wolan, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Newfield Central School District (“respondent”) to suspend his son (“the student”).  The appeal must be sustained in part.

During the 2016-2017 school year, the student attended respondent’s high school.  According to petitioner, on March 29, 2017, the high school principal contacted petitioner’s wife and asked her to come to the school to “discuss a problem with petitioner’s son.”  Petitioner and his wife went to the school and met with the principal, the student and a guidance counselor.  The principal stated that he had interviewed “several student witnesses” and it appeared that the student had made “discriminatory statements.”  The principal referred to a printout of images and comments from a social media account used by the student.   

By letter dated March 29, 2017, the principal suspended the student for five days.  The letter included a six-paragraph description of the incident that resulted in the suspension, which involved statements made by the student regarding religion and sexual orientation.  The letter stated that the student violated the portion of the district’s code of conduct relating to the Dignity for All Students Act and charged the student with “Discrimination – protected category.”  The record indicates that this letter (“March 29 letter”) was sent to petitioner via regular mail.  

By email dated March 29, 2017, the district clerk notified petitioner’s wife that she was “mailing out a letter today” to notify her that a superintendent’s hearing would be held on March 31, 2017, at 8:15 a.m.  In another email to petitioner’s wife sent on March 29, 2017, the district clerk stated “[t]his is a copy of the letter that is being mailed today” and attached a .pdf file.  The parties agree that the attached document was captioned “Notice of Charges” (hereinafter, “notice of charges”).  This document included the date and time of the hearing and informed the student’s parents of their rights pursuant to Education Law §3214.  The document indicated that the student was charged with:

[C]onduct that endangered the safety, morals, health or welfare of the students and/or staff and that violated the Newfield Central School Code of Conduct.  This charge stems from the following incident: [d]iscrimination as outlined in [the prinicpal’s] letter dated March 29, 2017.

The hearing, presided over by the superintendent, convened as scheduled.  The student, who was not represented by counsel, “pled innocent” to the charged conduct.  The superintendent found the student guilty based upon the evidence and testimony adduced at the hearing.  Thereafter, a manifestation determination review was held and it was found that the student’s conduct was not a manifestation of his disability.  The superintendent subsequently imposed an out-of-school suspension through April 30, 2017.  By letter dated April 11, 2017, petitioner appealed this decision to respondent.  By letter dated April 14, 2017, respondent upheld the superintendent’s determination.  This appeal ensued. 

Petitioner challenges both the short-term and long-term suspensions on appeal.  Regarding the five-day suspension, petitioner contends that the student was impermissibly suspended for five days before petitioner received written notice of his rights to an informal conference and to question complaining witnesses.   

Regarding the long-term suspension, petitioner contends that he did not receive reasonable notice of the charges or the hearing.  He asserts that he was precluded from presenting an “effective” and “proper” defense because respondent relied upon testimony by the principal at the hearing to establish the student’s guilt and not testimony by “eye witnesses.”  Petitioner further argues that the principal’s testimony contained “errors and contradictions” which “cast doubt on his ability to recall events and conversations accurately.”  Petitioner also argues that the penalty imposed is excessive.  Petitioner further challenges respondent’s requirements for bringing appeals of long-term suspensions, including respondent’s timeline for filing such an appeal.  Petitioner also alleges that respondent failed to consider “potential conflicts of interest” because family members of complaining witnesses served on the board.[1]  For remedies, petitioner requests that the hearing decision be set aside and that both the short-term and long-term suspensions be annulled and expunged from the student’s record. 

Respondent denies petitioner’s assertions and argues that petitioner’s request for expungement of the five-day suspension is moot because it has already been expunged by the superintendent.

I must first address a procedural issue.  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, 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.

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 student has served his suspension.  Therefore, except to the extent petitioner seeks expungement of the student’s records, the appeal is dismissed as moot (Appeal of D.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026; Appeal of E.B. and F.B, 53 id., Decision No. 16,545; Appeal of M.W. and L.W., 50 id., Decision No. 16,238).

Petitioner’s request for expungement of the short-term suspension must also be dismissed as moot.  Respondent submits with its answer an affidavit from the superintendent indicating that she expunged the short-term suspension from the student’s record.  Therefore, no meaningful relief may be granted with respect to the short-term suspension at this juncture, and any review of respondent’s actions would be academic under these circumstances (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,022).

Turning to the merits of petitioner’s challenges to the long-term suspension, petitioner contends that the student was denied his right to due process because he did not receive reasonable notice of the hearing or the charges.  Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897). What constitutes “reasonable notice” varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of F.W., 48 Ed Dept Rep 399, Decision No, 15,897; Appeal of a Student with a Disability, 46 id. 385, Decision No. 15,540).  One day’s notice has been held inadequate to provide an opportunity for a fair hearing (Carey v. Savino, 91 Misc.2d 50; Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360).

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).

Petitioner argues that he was given insufficient notice of both the hearing and the charges which did not afford him time to prepare a defense.  The record reflects that the district clerk sent two emails to petitioner’s wife on March 29, 2017.  The first, sent at 3:41 p.m., notified petitioner’s wife that the superintendent’s hearing was scheduled for March 31, 2017 at 8:15 a.m.  The second email, also addressed to petitioner’s wife and sent at 3:49 p.m., purported to include a copy of the notice of charges as an attachment.  Petitioner admits that he “became aware of [the] two email messages that had been sent by respondent ... [s]ometime between the late afternoon of March 29, 2017 and the morning of March 30, 2017” and that the notice of charges was attached to one of these emails.  The record reflects that respondent also sent a copy of the notice of charges to petitioner and his wife, which petitioner contends was not received until “sometime after April 1”; i.e., after the conclusion of the hearing.

Petitioner alleges that at the hearing, he was shown the March 29 letter regarding the short-term suspension for the first time.  A review of the hearing record indicates that the hearing officer gave the student certain documents and stated: “I want you to take a look at these; I want to make sure that you have seen them and read them.”  Petitioner then asked: “the notice of hearing referred to a letter of March 29 – is that what he is reading?” In response, the principal stated: “it was mailed out that afternoon, I don’t know if it was received by you yet.”  The hearing officer then indicated that the March 29 letter was also sent as an email attachment, a claim which petitioner’s wife denied.  The hearing officer then stated: “OK, then I want you to read that before we go any further, just make sure that you read those.”

Therefore, according to the hearing record, it appears that petitioner first received the notice of charges, at most, approximately one-and-one-half days before the hearing.  Although petitioner’s description of when he read the email messages is imprecise, it appears that petitioner opened the emails, at the earliest, on the evening of March 29, 2017.  It further appears from the record that respondent sent the notice of charges via U.S. mail, and that it did not arrive at petitioner’s residence until after the hearing concluded.  Given the fact that the hearing was scheduled to begin at 8:15 a.m. on March 31, 2017, it appears that petitioner was provided with, at most, one-and-one-half days’ notice to prepare for the long-term suspension hearing.

Moreover, there is no evidence in the record that petitioner received the March 29 letter, which explained the charges against the student in detail, until the day of the hearing.  While respondent asserts that the March 29 letter was included with the email containing the notice of charges, respondent has submitted no proof in support of this assertion. 

Although the appropriate remedy for parents seeking additional time to prepare a defense to disciplinary charges against their child is to request an adjournment of the scheduled hearing (Appeal of Esther F., 39 Ed Dept Rep 357, Decision No. 14,258; Appeal of Albanese, 26 id. 327, Decision No. 11,773), under the circumstances of this case, petitioner’s failure to affirmatively request an adjournment is not fatal to his claims regarding the timeliness and adequacy of the district’s notice.  The parties dispute whether petitioner was offered or requested an adjournment and, if so, whether petitioner declined such an adjournment.  Petitioner asserts that, in response to concerns which he voiced at the hearing, the hearing officer “did not raise the possibility of rescheduling the hearing.”  In response, respondent claims that “petitioner was given the opportunity at the hearing to take more time to obtain counsel and [p]etitioner declined.”  A review of the hearing record indicates that at the outset of the hearing, the hearing officer asked the student, “[a]re you waiving your right to that counsel so that we can proceed with the hearing today” but did not mention the possibility of an adjournment.  Petitioner did not request an adjournment at that time.[2]  The hearing record further indicates that petitioner did inquire as to whether student witnesses to the alleged conduct would be made available at the hearing.  In response, the hearing officer indicated that it was not feasible to produce such witnesses at that juncture, as the district would have to seek and obtain parental consent.  Thus, although the record does not indicate that petitioner expressly request an adjournment, the record nevertheless indicates that petitioner voiced various procedural and due process concerns related to the adequacy and timeliness of the notice of the charges and his hearing rights pursuant to Education Law §3214. 

Under the circumstances described above, I cannot conclude that petitioner or the student were afforded due process regarding the long-term suspension.  Therefore, based upon respondent’s failure to provide petitioner with timely and reasonable notice of the charges against the student and his rights pursuant to Education Law §3214, I find that the hearing must be invalidated (see Matter of Anderson, 11 Ed Dept Rep 45, Decision No. 8,328).  Under such circumstances, the appropriate remedy would generally be to expunge the suspension and remand the matter to the district for a new hearing (Carey v. Savino, 91 Misc.2d 50; Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360).  However, because the student had already served the entirety of his suspension by the time this appeal was timely commenced, I find that respondent must either annul and expunge the student’s long-term suspension or provide him with an opportunity for a new hearing based upon the charges at issue herein with adequate notice of the charges and adequate time to present a defense (Matter of Anderson, 11 Ed Dept Rep 45, Decision No. 8,328).  Should respondent elect to convene a new hearing, it must consider the fact that a suspension of approximately one month represented its considered judgment as to an appropriate penalty based on the evidence in this record, which respondent (although not petitioner) had a full and fair opportunity to present and must take into consideration the time already served by the student for the charged conduct.

Finally, I note that petitioner objects to respondent’s timelines for filing an appeal of a long-term suspension.  The record indicates that respondent’s code of conduct requires parents who wish to appeal a long-term suspension imposed by the superintendent to submit such an appeal to respondent within ten days of the decision; however, the superintendent’s decision herein stated that petitioner had only five days to appeal such decision to respondent.  In any case, the Commissioner has repeatedly held that a rigid timeframe of 10 days is inconsistent with due process, the Education Law and sound educational policy (Appeal of B.L.G., 50 Ed Dept Rep, Decision No. 16,101; Appeal of M.T., 48 Ed Dept Rep 263, Decision No. 15,854).  Accordingly, respondent is hereby directed to revise its policy accordingly.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent annul and expunge the student’s suspension from April 1, 2017 through April 30, 2017 from his record or afford petitioner an opportunity for a new long-term suspension hearing based upon the charges previously brought against the student with adequate notice of the charges provided to petitioner prior to the commencement of such hearing; and

IT IS FURTHER ORDERED that respondent review and revise its policy regarding appeals of long-term suspensions to respondent.

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