Appeal of A.R. and R.R., on behalf of their son J.R., from action of the Board of Education of the Half Hollow Hills Central School District regarding student discipline. 

Decision No. 17,379

(April 24, 2018)

 

Long Island Advocacy Center, attorneys for petitioners, Diane E. Inbody, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Joseph Lilly, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Half Hollow Hills Central School District (“respondent”) to suspend their son (“the student”).  The appeal must be dismissed.

During the 2014-2015 school year, the student attended ninth grade at respondent’s high school. By email dated October 15, 2014, respondent notified teachers, parents, and guardians that “[o]n Tuesday, October 14 ... a threatening statement was found written on a bathroom wall....”  The email stated that the exact statement was “Bomb, Friday, 1:00.”  The email also indicated that police were notified and that their investigation was “ongoing, but at this time, no recommendations were made regarding an evacuation or lockdown.”  School was held on October 16 and October 17, 2014 as scheduled; however, on both days, students were “subject to a bag search” and on October 17, bomb sniffing dogs “swe[pt] the building.”

By letter dated October 17, 2014,[1] respondent’s high school principal (“principal”) notified petitioners that the student was suspended for five days.  The letter included a description of the “event” for which the suspension was imposed as a “Bomb Threat” and included the following in a portion of the notice labelled “Incident Comments:”

[The student] admitted to making a threatening statement and distributing it through social media.  It caused significant disruption to the school day. 

The letter indicated that the principal had determined that the student’s continued presence in school posed a continuing danger and/or an ongoing threat of disruption to the academic process and that, therefore, the suspension was effective immediately.  The letter advised petitioners of the right to an informal conference and to question complaining witnesses and that a referral would be made to the superintendent for possible further disciplinary action.

By Notice of Charges dated October 20, 2014, petitioners were notified that a superintendent’s hearing would be held on October 23, 2014.  The notice charged the student with violation of the school’s code of conduct and “conduct which is insubordinate or disorderly or violent or disruptive and/or a danger to the safety, morals, health or welfare of others.”  Specifically, the notice alleged that the student:

[U]sed his cell phone to generate a fictitious text conversation that appeared to confirm that a bomb threat, which had been made earlier in the week by an unidentified individual, would be carried out the following day.  [The student] distributed a copy of the text conversation via a social networking site, namely Twitter, in an attempt to convince other Half Hollow Hills High School West students not to come to school the following day.

The hearing, presided over by a hearing officer, convened on November 5, 2014.  The hearing officer found the student guilty based upon the evidence and testimony adduced at the hearing.  The hearing officer recommended that the student be suspended through June 11, 2015, and that he be permitted to return to school on June 12, 2015 to take Regents examinations.  By letter dated November 12, 2014, the superintendent notified petitioners that she accepted the hearing officer’s recommendations regarding guilt and penalty.  By letter dated December 4, 2014, petitioners appealed this decision to respondent.  By letter dated December 18, 2014, respondent indicated that it had upheld the superintendent’s determination.  This appeal ensued.  Petitioners’ request for interim relief was denied on February 19, 2015.

Petitioners argue that the penalty imposed was disproportionate to the severity of the offense and thus arbitrary and capricious, and that respondent erred in failing to decide all issues raised in petitioners’ appeal of the superintendent’s determination.  Petitioners request that the suspension be “forgo[ne],” or reduced to allow the student to return to school immediately.  Petitioners also request that the principal’s suspension be expunged, or that an order be issued “direct[ing] the district [to] modify the language of the suspension to reflect the Notice of Charges.”

Respondent contends that petitioners have failed to state a claim for which relief can be granted and that they have failed to meet their burden of proof.  Respondent argues that its disciplinary actions and decisions were within its lawful authority and discretion.  Respondent requests that the appeal be dismissed in its entirety.  Finally, respondent objects to certain allegations contained in the petition and certain exhibits submitted in support of the petition on the grounds that they were not part of the hearing record. 

All of petitioners’ claims relating to the long-term suspension 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 2014-2015 school year has ended, and therefore, the student has served the suspension.  The relief requested with regard to the penalty imposed, that I “forgo the suspension period” or reduce it and allow the student to return to school immediately, can no longer be granted.  Further, petitioners limit their request for expungement of the student’s record to expungement of the five-day suspension imposed by the principal.  Therefore, all of petitioners’ claims regarding the long-term suspension imposed by the superintendent from October 28, 2014 through June 11, 2015, and the appropriateness of that penalty are moot (see e.g. Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292).

Petitioners’ request for expungement of the principal’s five-day suspension must also be dismissed.  While the petition is not entirely clear, it appears that petitioners argue that the principal’s notice of the five-day suspension stated the charges as “bomb threat” and that there was no evidence adduced to support a charge of a bomb threat.[2]    

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).

Petitioners contend that the student’s five-day suspension should be expunged because the notice of suspension referred to a bomb threat and respondent “failed to establish that [the student] made a bomb threat.”

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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).

The charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing” (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).

On this record, it is undisputed that the student posted the message that is the subject of this appeal on his Twitter account.  Petitioners argue that the principal’s notice mischaracterized the student’s conduct as a bomb threat.  In making this argument, however, petitioners ignore the “Incident Comments” portion of the principal’s notice which further describes the charged misconduct and states that the student admitted to “making a threatening statement and distributing it through social media.”  I find that the principal’s notice was sufficient to apprise petitioners of the reason for the suspension and was sufficiently specific to enable petitioners to prepare an effective defense.  The fact that the Notice of Charges subsequently issued refers to the student’s fictitious text conversation that appeared to confirm a bomb threat, rather than the student making a bomb threat, is immaterial.  Petitioners have not met their burden of proving that the principal’s notice was not specific enough to apprise them of the alleged misconduct, nor have they proven that the principal’s determination to suspend the student for five days was arbitrary and capricious.

Additionally, to the extent that petitioners request that respondent amend the student’s record, amendment of student records is governed by the federal Family Educational Rights and Privacy Act (“FERPA”) (20 U.S.C. §1232[g]) and its implementing regulations (see 34 CFR §§99.20, 99.21, 99.22).  The Commissioner lacks jurisdiction to consider FERPA claims.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502).

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

THE APPEAL IS DISMISSED.

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