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

Decision No. 17,327

(February 15, 2018)

Legal Services of Central New York, attorneys for petitioner, Susan M. Young, Esq., of counsel

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, Ed Sarzynski, Esq., of counsel

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

During the 2014-2015 school year, the student attended sixth grade at respondent’s elementary school.  Petitioner admits that, on May 11, 2015, “at the end of the school day,” the student threatened to bring a weapon to school.[1]  That same day, the elementary school principal (“principal”) attempted to contact petitioner by telephone; however, because petitioner was at work, the principal was unable to speak with her.  The principal then contacted the Canastota Police Department (“police”).  Later that evening, the principal again contacted petitioner by telephone; however, according to petitioner, she was unable to speak with the principal because the police were at her home.  The parties do not dispute that the principal and petitioner spoke later that evening, and the principal informed her of “the student’s suspension.”  The record does not indicate what, if any, other details were discussed during the telephone call, such as the length of the suspension or whether the principal indicated that the district intended to convene a long-term suspension hearing.    

By letter dated May 12, 2015 (“May 12 letter”), respondent’s superintendent of schools (“superintendent”) notified petitioner that a superintendent’s hearing would be held on May 15, 2015 to “consider the suspension of [the student] from attendance at school for a period in excess of five (5) school days....”  The letter also charged the student with “[m]aking threats on school property.”  Finally, the letter advised petitioner that the student was “suspended from required attendance pending the [s]uperintendent’s [h]earing and determination of this matter.”  The record indicates that the May 12 letter was sent to petitioner via certified and regular mail, return receipt requested.  The record also indicates that the May 12 letter was mailed on May 13, 2015; however, there is no evidence as to when petitioner received it. 

By email dated May 14, 2015, petitioner’s attorney contacted the district to request an adjournment of the long-term suspension hearing.[2]  By letter dated May 15, 2015 (“May 15 letter”), the superintendent rescheduled the date of the hearing to May 22, 2015.[3]  The letter indicated that the student violated the district’s code of conduct because he “threatened to bring a weapon on school premises” and “threatened to harm one or more students with a weapon.”  

The hearing, presided over by a hearing officer, convened as scheduled.  The student, who was represented by counsel, admitted at the hearing that he said he was going to bring a weapon to school, but denied that he threatened to harm anyone.  The hearing officer 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 hearing officer recommended that the student be suspended through the end of the school year.  By letter dated June 3, 2015, the superintendent notified petitioner that she accepted the hearing officer’s recommendations regarding guilt and penalty. On June 25, 2015, petitioner appealed this decision to respondent.  By letter dated July 23, 2015, respondent indicated that it had upheld the superintendent’s determination.[4]  This appeal ensued.

Petitioner confines her challenge on appeal to the short-term suspension.  Petitioner argues that the district violated the student’s due process rights when it suspended the student without providing written notice or an opportunity for an informal conference with the right to question complaining witnesses.  Petitioner requests that respondent expunge the student’s short-term suspension from his record, including its extension through the date of the long-term suspension hearing.

Respondent argues that petitioner’s challenge to the short-term suspension involves alleged violations of Education Law §3214(3)(b)(1), but that this provision is inapplicable because the superintendent’s notice of the charges and the hearing were brought pursuant to Education Law §3214(3)(c)(1), which does not require an informal conference.  Respondent contends that it complied with the requirements of Education Law §3214(3)(c)(1) in seeking a suspension in excess of five days by providing specific notice of the charges and adequate notice of the hearing. 

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]).[5]

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).

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 the short-term suspension must be expunged from the student’s record because the district failed to comply with the notice requirements of Education Law §3214(3)(b)(1).  In essence, respondent argues that the superintendent immediately decided to convene a long-term suspension hearing and, therefore, it was not required to provide written notice and an opportunity for an informal conference in accordance with Education Law §3214(3)(b)(1).  In support of its contention, respondent cites to the hearing testimony of its principal who referred to the suspension as a superintendent’s suspension and argues that the suspension was initiated on May 12, 2015, by the superintendent and not on May 11, 2015, by the principal.

Although respondent urges that Education Law §3214(3)(b)(1) does not apply to long-term suspensions, I note that it is well-settled that any disciplinary procedures used in school must meet minimum standards of fairness and due process (see Goss v. Lopez, 49 U.S. 565; Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242; Appeals of McMahon and Mosely, et al., 38 id. 22, Decision No. 13,976).  Moreover, 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).

In this case, however, the student was not provided with any such due process – neither the processes required by Education Law §3214(3)(b)(1) nor those required by Education Law §3214(3)(c)(1) – prior to the date of the student’s suspension on May 12, 2015.  While respondent argues that requiring an informal conference including the questioning of complaining witnesses when the same complaining witnesses could be questioned at the long-term suspension hearing constitutes “double due process,” as noted above, the student in this case was provided with no due pricess prior to his suspension on Ma 12, 2015 (Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242).  Consequently, the student’s initial four-day suspension from May 12 through May 15, 2015 must be expunged from the student’s record (Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242).

Petitioner also requests expungement of the student’s suspension from May 19 through June 3, 2015, the day that the superintendent issued her written decision.

Education Law §3214(3)(c) mandates that a suspension may not continue beyond five school days unless and until the student has been afforded an opportunity for a hearing and a determination adverse to the interests of that student has been made (Ross v. Disare, 500 FSupp 928; MacDonald v. Tompkins, 67 Misc2d 338; Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419).  Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing sustaining a longer period of suspension is held within the initial five-day suspension period or an adjournment is requested by the student or parent (Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Matter of Wehner, 22 id. 661, Decision No. 11,110).  Where a hearing is timely scheduled, but adjourned at the parent’s request, the five-day requirement is vitiated and the student may remain out of school beyond five days (see Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Appeal of Wehner, 22 id. 661, Decision No. 11,110).

In this case, the student’s initial suspension was to be through May 15, 2015.  However, counsel for petitioner requested an adjournment of the May 15, 2015 hearing date, and the hearing was rescheduled to May 22, 2015.  Under these circumstances, continuation of the student’s suspension through May 22, 2015 was not improper (Ross v. Disare, 500 FSupp 928; Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211).  However, the superintendent’s decision was not rendered until June 3, 2015, which was beyond the fifth day of the student’s suspension.  Because Education Law §3214(3)(c) requires that a student be readmitted to school unless a hearing is held and a decision rendered thereon within the initial five-day suspension period, the student’s suspension from May 23, 2015 through June 3, 2015 must be expunged (Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of D.H., 47 id. 77, Decision No. 15,631; Appeal of McMahon, et al., 38 id. 22, Decision No. 13,976).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of the student from May 12, 2015 through May 15, 2015 and from May 23, 2015 through June 3, 2015, be expunged from the student’s record.

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