Appeal of J.Y. and C.Y., on behalf of their son C.Y., from action of the Board of Education of the Mount Morris Central School District regarding student discipline. 

Decision No. 17,403

(June 5, 2018)

Hodgson Russ LLP, attorneys for respondent, Melanie J. Beardsley, Esq., of counsel

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

The student attends sixth grade at respondent’s elementary school.  On October 13, 2017, the student was involved in a physical altercation in the school cafeteria.[1] Following the incident, at approximately 11:30 a.m., the student was escorted to the main office where he met with respondent’s dean of students (“dean”), provided a written statement, and then returned to class.  That afternoon, the high school principal contacted petitioner J.Y. and asked her to come to the school to pick up the student around 3:00 p.m.  When petitioner arrived at the school she met with respondent’s elementary school principal (“principal”) and the dean.  Petitioner was advised by the dean that the student had been involved in a physical altercation and was “suspended for five days based on a video and [his] written statement.”  The parties do not dispute, that the principal handed petitioner J.Y. a letter dated October 13, 2017.[2]  The letter advised petitioners that “as per [the] meeting on 10/13/17, this notice is to inform you that your child, [the student] has been suspended from school for 5 day(s), 10/16/17 to 10/20/17....”  The letter further advised petitioners that the student was suspended “immediately as his/her presence in the school poses an ongoing threat of disruption to the academic process, or a continuing danger to persons or property.”  Finally, the letter advised petitioners of their right to have an informal conference and question complaining witnesses. 

The record indicates that the next day, Saturday, October 14, 2017, petitioner J.Y. emailed the principal and requested an informal conference.  Petitioner J.Y.’s email stated, “I feel the need to watch the video....”  The email also indicated that she “[had] a question on the severity of his consequence.”  The principal and petitioner J.Y. exchanged emails on Sunday and scheduled an informal conference to be held on Monday, October 16, 2017.[3]  An email from the principal indicated:

Until our meeting has concluded, [the student] will be allowed to serve in-school suspension, if you so choose.  Following our meeting, his established consequence will take effect.  Please let me know if you would like to postpone his out of school suspension until after the informal conference.

The petition indicates that the student “did not attend the informal conference because [petitioners] assumed that if [they] brought him to school, the school would send him to the [i]n [s]chool [s]uspension room.”

On Monday, October 16, 2017, petitioner J.Y. met with the principal and watched the video of the altercation.  According to petitioner J.Y., there was an altercation between two students and her son “got in the middle in order to prevent further action.” Petitioner J.Y. states that the video showed her son “fly backwards after being pushed by [another student]” and “being punched in the head by [another student].” 

The record is not entirely clear, but it appears that the student served the suspension and that petitioners appealed to the superintendent.[4]  By letter dated October 30, 2017, the superintendent upheld the five-day suspension.  By letter dated November 9, 2017, petitioners appealed the decision to respondent.  By letter dated December 14, 2017, respondent indicated that it had upheld the superintendent’s determination.  This appeal ensued.

Petitioners argue that the student was suspended before petitioners were afforded the right to an informal conference with the right to question complaining witnesses and that the student’s presence in school did not pose an ongoing threat of disruption to the academic process. Petitioners also argue that the district’s failed to follow its code of conduct, which states, that “[a]fter the conference, the [p]rincipal shall promptly advise the parents in writing of his or her decision.” Petitioners request that the five-day suspension be expunged from the student’s record. 

Respondent argues that the petition must be dismissed for failure to state a claim upon which relief may be granted.  Respondent asserts that it complied with all applicable rules and regulations and its code of conduct, specifically that it conducted an investigation prior to charging the student with misconduct; that the principal held two informal conferences to discuss the misconduct; that petitioners were permitted to question the complaining witness in the presence of the principal; and that following the informal conference, the principal upheld her decision to suspend the student.  Finally, respondent argues that “any procedural errors committed by the [d]istrict resulted in harmless error.” 

I must first address a procedural matter.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

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

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, 50 Ed Dept Rep, Decision No. 16,170; Appeal of a Student with a Disability, 47 id. 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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners’ argue that they were not provided with notice and the opportunity for an informal conference prior to the suspension of their son.  The record indicates that the parties had two meetings, one on October 13, 2017 and a second on October 16, 2017.  Petitioners allege that the meeting on October 13, 2017 was not an informal conference and that the informal conference was the meeting held on October 16, 2017.  However, respondent argues that both meetings were informal conferences.  I will address the meetings in turn.

With respect to the meeting held on October 13, 2017, certain facts are not in dispute, such as: on October 13, 2017, in response to a call from respondent’s high school principal, petitioner J.Y. came to pick up the student and met with the principal and dean; petitioner J.Y. was informed by the principal that “she believed [the student] had been involved in a physical altercation at around 11.30 AM [sic] in the cafeteria, and that she was suspending [the student] for five days” and by the dean that “[the student] had been suspended for five days based on a video and [the student’s] written statement”; and that at some point, the principal handed petitioner J.Y. a letter dated October 13, 2017, which notified petitioners that “as per [the] meeting on 10/13/17,” the student was being suspended from school from October 16, 2017 through October 20, 2017.

As noted above, 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.  Generally, nothing prohibits a district from personally delivering notice of suspension during an informal conference where both the complaining witness(es) and the principal are present and the suspension has not yet started (see e.g.  Appeal of F.L. and D.L., 55 Ed Dept Rep, Decision No. 16,888). Petitioners do not dispute that the principal handed petitioner J.Y. a letter dated October 13, 2017 containing written notice of the suspension.  However, the petition indicates that petitioner J.Y. did not review the letter at the meeting, stating that she was handed a letter “which [she] later looked at ...” and “[u]pon arriving home ... I then read Out-Of-School Suspension letter....”  Petitioners allege that petitioner J.Y. was “merely asked by the high school principal to come and pick up [the student]” and that she “was never told” that the meeting was an informal conference or “what rights are afforded to all parents at an informal conference.”  While respondent generally denies petitioners’ allegations, it provides no affidavit from the dean or principal attesting to what was said at the meeting.  Therefore, the record indicates that petitioners were not in fact made aware of their right to question the complaining witnesses prior to or during the October 13, 2017 meeting.  I cannot find that mere delivery of a written notice letter during a meeting affords sufficient notice of the parents’ right to question complaining witnesses such that the meeting complies with the requirements for an informal conference under Education Law §3214(3)(b)(1).  Respondent’s contention that the meeting on October 13, 2017 was the informal conference is undercut by the fact that the October 13, 2017 letter included notice of the right to request an informal conference and respondent treated petitioners’ request for an informal conference as an initial request.  The emails between petitioner J.Y. and the principal contain no reference to the October 16, 2017 meeting being a supplemental, or second informal conference.  Therefore, on this record, I cannot conclude that the meeting on October 13, 2017, was an informal conference.

However, the meeting held on October 16, 2017 would constitute an informal conference as it was scheduled after petitioners were provided written notice in the October 13, 2017 letter of the alleged misconduct and were advised of their right to question complaining witnesses.

Petitioners contend that the suspension improperly commenced prior to the informal conference which was held later in the morning of October 16, 2017.  Respondent contends that the student “was properly suspended immediately due to his violent behavior as his presence in the school posed an ongoing threat of disruption to the academic process.”  Indeed, the hand-delivered letter dated October 13, 2017, stated that the student was suspended “immediately as his/her presence in the school poses an ongoing threat of disruption to the academic process, or a continuing danger to persons or property.”  However, petitioners allege, and respondent does not dispute, that after providing a written statement about the incident at approximately 11:30 a.m. on October 13, 2017, the student returned to class until approximately 3:00 p.m. - when petitioner picked him up.  Therefore, respondent’s contention that that the student presented an ongoing threat of disruption or continuing danger warranting an immediate short-term suspension is undercut by the fact that the student was permitted to return to and attend class for the remainder of the school day (see e.g. Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,110; Appeal of J.S. and J.S., 56 id. Decision No. 17,032; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036).  Moreover, petitioners allege that their son was merely interceding in a fight between other students, “to prevent further action” and respondent has not provided copies of the video recording of the incident or the written statement of the student or any other evidence supporting its assertion that his presence posed an ongoing threat of disruption or a continuing danger to persons or property.

Accordingly, the five-day suspension must be annulled and expunged from the student’s record.  In light of this disposition, I need not address the parties’ remaining contentions. 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent annul and expunge the student’s suspension from October 16, 2017 through October 20, 2017, from his record.

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