Appeal of T.M., on behalf of his son N.M., from action of the Board of Education of the Westhampton Beach Union Free School District regarding student discipline.

Decision No. 17,309

(January 19, 2018)

The Law Offices of Douglas A. Spencer, PLLC, attorneys for petitioner, Douglas A. Spencer, Esq., of counsel

Kevin A. Seaman, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals a decision of the Board of Education of the Westhampton Beach Union Free School District (“respondent”) to impose discipline on his son, N.M. (“the student”).  The appeal must be sustained in part.

On May 1, 2015, administrators in respondent’s high school became aware that student R.V. had suffered a severe reaction after ingesting a candy which contained tetrahydrocannabinol (“THC”).  According to respondent, R.V. indicated to administrators that the student provided him with the candy.  Petitioner denies this allegation and asserts that he and his wife contacted R.V.’s parent after the incident, and that R.V.’s parent stated that the student had not provided R.V. with the candy.

Later in the day on May 1, 2015, the principal questioned the student about the incident in his office.  During this questioning, the student voluntarily provided the principal with an empty candy wrapper which had contained candy laced with THC.  The student asserted that he picked it up off the floor of an art classroom.  According to the principal, the student claimed that he did so “in the interest of ‘not having to have a custodian pick up the litter.’”  However, according to the principal, student R.V. stated that he had disposed of the candy wrapper in his own home.

The student’s mother was contacted and met with the principal and assistant principal on May 1, 2015, to discuss the incident.  The principal asserts in an affidavit that he verbally informed the student’s mother that an informal conference would be held on Monday, May 4, 2015. The student’s mother attests in an affidavit that she was neither provided with written notice of the suspension nor informed of her rights at that time; was not informed of the reasons for the suspension; and was never advised of who the complaining witnesses were.  Prior to the May 4, 2015 meeting, the parties exchanged emails concerning the incident, including an email from the principal dated May 3, 2015 in which he requested that petitioner and his wife not send the student to school the next day; that he “would contact them by telephone the next morning”; and that “[y]ou are welcome to come in as well.”

On May 4, 2015, the principal had an extended telephone conversation with petitioner about the suspension.   At 4:00 p.m. that afternoon, the principal and assistant principal met with petitioner and the student’s mother to discuss the suspension.

In a written notice dated May 1, 2015, and personally delivered to petitioner on May 5, 2015, the principal charged the student with possession of drug paraphernalia and imposed a five-day suspension.  The written notice indicated that the student was suspended “effective May 1, 2015,” and could return to school on May 8, 2015.  According to the record, the student nevertheless attended school for the majority of the school day on May 1, 2015.  Following these events, petitioner considered, but ultimately rejected, appealing the short-term suspension to respondent.[1]  This appeal ensued.

Petitioner contends that he did not receive adequate written notice of the student’s suspension until May 5, 2015, two school days after imposition of the suspension and that the short-term suspension notice did not sufficiently identify the allegations against the student.  Petitioner also asserts that the written notice did not apprise him of his right to ask questions of complaining witnesses and that he was not, in fact, provided with an informal conference with the principal or informed of the identity of complaining witnesses prior to imposition of the student’s suspension.  Petitioner also argues that respondent erred by not allowing the student to present his version of the events to the principal.  Finally, petitioner contends that the student’s conduct did not constitute “possession of drug paraphernalia” within the meaning of respondent’s code of conduct.  Petitioner seeks expungement of the five-day suspension from the student’s record, as well as an order directing respondent to provide the student with alternative instruction which it allegedly failed to provide during the student’s suspension.

Respondent denies petitioner’s contentions and argues that it provided petitioner with legally sufficient notice of the student’s short-term 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).

On this record, I find that the written notice is defective because it did not apprise petitioner of his right to question complaining witnesses as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).  Although the record reflects that petitioner’s wife did, in fact, meet with the principal on May 1, 2015, the record does not indicate that petitioner’s wife was advised of her right to question complaining witnesses prior to such meeting and, even if she was no notified, the provision of verbal notice of such right does 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).  Although the principal states that he provided oral notification of the student’s suspension to petitioner’s wife on May 1, 2015, oral communication with a parent regarding a suspension is not 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).

Moreover, I find that respondent failed to deliver the short-term suspension notice by means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension.  The record reflects that the principal immediately decided to suspend the student on May 1, 2015, but did not arrange for petitioner to receive written notice of the suspension until May 5, 2015, when a school security guard hand-delivered the written notice to petitioner.  Thus, the written notice was not delivered to petitioner until the third day of the student’s five-day suspension in violation of 8 NYCRR §100.2(l)(4) (Appeal of a Student with a Disability, 45 Ed Dept Rep 531, Decision No. 15,406).

Respondent argues that it provided written notice within a reasonable time after the student’s suspension commenced because it allowed the student to attend school on May 1, 2015, and thus, his suspension effectively commenced on May 4, 2015.  This argument is unpersuasive.  As a preliminary matter, the principal attests in an affidavit that he told the student’s mother that he would count May 1 as the first day of the student’s five-day suspension, which indicates that the student’s records would reflect a suspension commencing on May 1, 2015.  Moreover, even if I were to accept respondent’s argument that the actual suspension did not commence until May 4, 2015, the written notice, which should have informed the parents of the right to an informal conference at which they may question complaining witnesses, was not provided prior to the commencement of the suspension, but rather in the morning of the second day the student was out of school.  Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) require that the notice and opportunity for an informal conference be provided prior to the suspension unless the student’s presence in school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  Here, the written notice did not reflect any such finding, and the record does not support such a finding.  Therefore, respondent violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) by failing to provide the written notice prior to the suspension (see e.g. Appeal of J.E., 57 Ed Dept Rep, Decision No. 17,267; Appeal of L.Z. and M.S., 56 id., Decision No. 17,034; Appeal of a Student with a Disability, 55 id., Decision No. 16,814).

Respondent contends that previous Commissioner’s decisions do not support expungement of the student’s suspension in this case.  While respondent cites previous Commissioner’s decisions in its memorandum of law, apparently for the proposition that they involve different or more serious violations of the written notice requirements, none of these decisions explain or justify respondent’s violations in this case.  In fact, one of the appeals cited and discussed by respondent, Appeal of R.Y. (49 Ed Dept Rep 336, Decision No. 16,046), sustained a parent’s request for expungement of a short-term suspension under similar circumstances.  In that appeal, the student’s suspension commenced on April 9, 2008, but the district did not mail a short-term suspension notice until April 10, 2008, which was received by the parent on April 11, 2008.  Unlike the record before me in the instant appeal, however, the district argued in Appeal of R.Y. that it deemed the student’s presence in school to be a continuing danger to persons or property.  Nevertheless, the Commissioner disagreed, stating that respondent “provide[d] no explanation for th[e] delay” and offered no evidence that its notification efforts “constitute[d] notice as soon after the suspension as was reasonably practicable.”

Respondent contends that it “fully complied with the terms of Education Law §3214 in affording the parent the opportunity for an ‘informal’ conference with the school principal prior to the actual commencement of the suspension,” and that it complied “for all intents and purposes” with the Commissioner’s regulations as the notice of the short-term suspension was delivered on the morning of May 5, 2015.  However, it is well-settled that “[h]olding an informal conference with the principal does not excuse the requirement for written notification to students and their parents ... explaining their rights to the conference and the opportunity to question complaining witnesses” prior to the suspension (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of B.B., 49 id. 253, Decision No. 16,017; Appeal of R.J and D.J., 44 id. 191, Decision No. 15,145; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059).

Based upon the above deficiencies with the written notice, the student’s five-day suspension must be expunged from his record (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).  I remind 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).

Finally, petitioner’s challenge to the sufficiency of the four hours of alternative instruction services the student received 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).  Here, the student completed the suspension, thus rendering any dispute as to these services moot (Appeal of C.B. and B.R., 50 Ed Dept Rep, Decision No. 16,192).

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 May 1, 2015 and May 7, 2015, be annulled and expunged from his record.

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