Appeal of JANE DOE, by her parent, from action of the Board of Education of the City School District of the City of Watertown regarding student discipline.

Decision No. 17,305

(January 11, 2018)

Office of Inter-Municipal Legal Services, attorneys for respondent, Dominic S. D’Imperio, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a decision of the Board of Education of the City School District of the City of Watertown (“respondent”) to impose discipline on his daughter, Jane Doe (“the student”).  The appeal must be sustained in part.

On September 22, 2015, a student in respondent’s middle school (the “classmate”) reported to the main office and filled out a “Case Middle School Harassment & Bully Form.”  In this form, the classmate stated that the student was “telling everyone in 8^th grade that she done [sic] sexual stuff with me witch [sic] didn’t happen.”  Later that day, the middle school principal and vice principal spoke to the student about the complaint.  The student denied spreading rumors about the classmate.

On September 23, 2015, a second classmate (the “reporting student”) came to the main office and showed the principal a sexually explicit picture she claimed the student had transmitted to her.  The reporting student also provided the principal with text conversations between the student and the classmate which referenced sexual conduct.  The principal and vice principal subsequently met with the student, who admitted that she had sent the picture and the text messages.  Petitioner was contacted and voluntarily took the student home for the remainder of the school day.

On September 24, 2015, the district conducted a further investigation into the incident.  The district learned, and the student admitted, that the student had sent a second sexually explicit photograph to a student who previously attended school within respondent’s district.  The vice principal called petitioner at approximately 2:00 p.m. and informed him that the district would impose a five-day suspension beginning the following school day.  The vice principal asked if petitioner would prefer that she or petitioner inform the student of the suspension; petitioner elected to tell the student himself.  The vice principal stated that she “would make sure that a letter was sent home about [the student’s] 5-day suspension in the mail that day.”

In a letter dated September 24, 2015, the principal and vice principal, who both signed the letter, imposed a five-day suspension commencing on September 25, 2015 “for distribution of pornographic material through cell phone texts.”

In a letter also dated September 24, 2015, the superintendent indicated that a long-term suspension hearing would be held on October 1, 2015.  The hearing, presided over by a hearing officer, convened as scheduled.

In a letter dated October 2, 2015, the hearing officer recounted certain events which transpired during the October 1, 2015 hearing.  According to the letter, after the district introduced evidence regarding the student’s guilt, counsel for the student[1] indicated that he “did not believe that the [h]earing could move on to the penalty phase without an interim determination.”  After reviewing the evidence and addressing petitioner’s objections thereto, the hearing officer concluded that the district “did meet its burden of proof in the instant matter,” but declined to render “a determination as to guilt at this time.”  The hearing officer stated that the hearing could proceed and recommended rescheduling the hearing for a mutually agreeable date.

In a letter dated October 13, 2015, counsel for respondent wrote to the attorney who represented petitioner at the hearing and indicated that the superintendent had “decided to withdraw any request for further punishment in this matter beyond the five (5) day suspension already imposed....” 

In a letter dated October 20, 2015, counsel for respondent wrote to counsel for petitioner and indicated that respondent would not modify or expunge the record of the student’s five-day suspension from her record.  This appeal ensued.

Petitioner raises a host of challenges to the student’s suspension, including claims that the photographs transmitted by the student were not pornographic within the meaning of respondent’s code of conduct and that the challenged conduct took place off-campus and after school hours.  Petitioner further argues that the district violated the student’s “due process” rights, as well as several other constitutional rights, in connection with the short-term suspension.  For relief, petitioner requests that the description “sexual offense” be expunged within the student’s record.

Respondent contends that many of the alleged violations raised by petitioner are outside the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310.  Respondent further argues that it acted appropriately in issuing the student’s short-term suspension, and that any challenge relating to the long-term suspension hearing is moot because respondent withdrew its request for such a hearing and has expunged any reference to a long-term suspension from the student’s record.

First, I must address two procedural matters.  Before withdrawing as counsel, petitioner’s former counsel submitted an unverified reply.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  Therefore, I have not considered petitioner’s reply (Appeal of D.H., 47 Ed Dept Rep 77, Decision No. 15,631).

To the extent petitioner challenges the conduct of the superintendent’s hearing on October 1, 2015, 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 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 superintendent’s hearing was not completed and the superintendent did not impose any suspension beyond the initial five-day suspension.  Thus, I decline to address petitioner’s contentions regarding the long-term suspension hearing which respondent initiated but later abandoned.

With respect to the five-day suspension, the evidence in the record reflects that the district violated petitioner and the student’s due process rights by issuing defective notice of the five-day suspension.  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).  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 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).

Here, the written notice is defective because it did not apprise petitioner of his right to an immediate informal conference with the principal at which he could question complaining witnesses (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).  Although the record reflects that petitioner did not meet with the principal or question complaining witnesses, even assuming, arguendo, that such a meeting or questioning occurred, this would not excuse the deficiencies with the written notice (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of B.B., 49 id. 253, Decision No. 16,017).  Thus, on the record, the written suspension notice violated both Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) and thereby denied petitioner and the student due process.   Consequently, the student’s five-day suspension must be expunged from her record (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).  I admonish respondent that, when imposing future short-term suspensions, it must fully comply with the requirements of Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4).

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s short-term suspension of the student for five days between September 25, 2015 and October 1, 2015 be annulled and expunged from her record.

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