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

Decision No. 17,503

(September 11, 2018)

The Legal Aid Society of Rochester, New York, attorneys for petitioner, Jonathan Falk, Esq., of counsel

Osborn, Reed & Burke, LLP, attorneys for respondent, Jennifer M. Schwartzott, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Pembroke Central School District (“respondent”) to impose discipline on her son (“the student”).  The appeal must be sustained.

During the 2017-2018 school year, the student attended respondent’s junior/senior high school.  According to the record, on October 24, 2017, the student allegedly attempted to grab a classmate’s backpack and clothing.  The student thereafter met with the junior/senior high school assistant principal (“assistant principal”) in the assistant principal’s office.  The assistant principal told the student that he should not engage in horseplay or physically touch others.  Thereafter, according to the record, the student “fled the office.”  The student proceeded to wander the halls, alternating between walking and running.  According to respondent, the student “made several verbal outbursts” and indicated that he would not return to the office or cease his behavior.  The student allegedly refused to heed the directives of a counselor, the dean of students, the principal, and the vice principal.  Eventually, the student’s stepfather picked the student up from school.

After the student had been picked up, the assistant principal called petitioner and spoke with her by telephone.  Respondent asserts that, after a brief discussion, petitioner “used vulgarity” and abruptly ended the call.

In a letter to petitioner dated October 24, 2017, the junior/senior high school principal (“principal”) indicated that the student would be suspended from October 25 through October 31, 2017.  The principal indicated that the student engaged in multiple violations of respondent’s code of conduct, including horseplay, failure to abide by a reasonable request, and disrespect towards staff.

In an email to the assistant principal dated October 26, 2017, petitioner indicated that she had not yet received “a letter regarding [the student’s] suspension.”  The assistant principal responded on October 27, 2017, that “the letter was placed in the mail the next morning of the suspension,” and “[u]sually the post office takes 2 days.”  The assistant principal copied a youth advocate associated with the organization which represents petitioner in this appeal (“youth advocate”) on this email and stated that he had “provided a copy” of the suspension letter to the youth advocate “via email.”  The assistant principal further asserted that he had intended to hand-deliver the written notice to petitioner on October 24, 2017, but that the “phone called [sic] ended premature [sic] to inviting you in to discuss in person.”

In an email dated October 27, 2017, the youth advocate indicated that she had received a copy of the written notice the previous day (i.e., October 26, 2017) and that the district’s mailing of the suspension notice via U.S. mail was legally insufficient.  The youth advocate asserted that this rendered the notice “insufficient,” and that the appropriate remedy for this violation was expungement of the suspension from the student’s record.

The assistant principal responded to the youth advocate’s email on October 27, 2017, asserting that he had asked his secretary to hand-deliver a copy of the suspension notice to the student’s stepfather on October 24, 2017 “but apparently that did not happen.”  The assistant principal again indicated that he had planned to schedule an informal conference when petitioner picked up the student, but that this did not transpire because petitioner abruptly terminated the phone conversation.[1]

According to the record, later on October 27, 2017, respondent convened a meeting of its Committee on Special Education (“CSE”) and developed a behavior plan for the student.  Petitioner asserts that she received a copy of the short-term suspension notice at this meeting.

In a letter dated November 30, 2017, the youth advocate wrote to the principal and asked him to expunge the five-day suspension from the student’s record because the October 24, 2017 written notice:  (1) was not provided prior to imposition of the student’s suspension; and (2) did not apprise petitioner of her rights to question complaining witnesses or request an informal conference with the principal.

In a letter dated December 12, 2017, the principal declined to expunge the short-term suspension from the student’s record but agreed to modify the suspension to reflect the fact that, per an agreement between petitioner and respondent, the student served a three-day instead of a five-day suspension.  The principal further asserted that his actions in suspending the student were appropriate, stating that the student had represented a continuing danger to persons or property or an ongoing threat of disruption to the academic process on October 24, 2017; that the student’s stepfather participated in an informal conference when he picked up the student from school that afternoon; and that the assistant principal called petitioner on that date to “answer [] any questions that she may have had,” but petitioner “used profanity, made claims of student discrimination, and hung up the phone prematurely.”  The principal additionally asserted that the October 24, 2017 written notice “was mailed on the same day as the incorrigible behavior ...” (emphasis in original).

In a letter dated January 12, 2018, the youth advocate wrote to respondent’s superintendent to request expungement of the student’s short-term suspension.  The youth advocate reiterated her earlier contentions, additionally asserting that “[t]here [wa]s confusion over whether the informal conference took place or not,” and that the student’s stepfather did not receive a notice of suspension on October 24, 2017.  The youth advocate further disputed the principal’s contention that the student represented a continuing danger on October 24, 2017.  The youth advocate reiterated her request for expungement of the student’s short-term suspension from his record.  According to the record, petitioner met with the superintendent on February 9, 2018. 

In an email dated February 13, 2018, the superintendent indicated that respondent would “expunge” the student’s suspension by altering the record of the incident in its student management system.  Specifically, the superintendent proposed that the student’s record would retain the description of the incident but indicate that, instead of a suspension, that the student received a “[w]arning” for his behavior and that “the CSE initiated the development of a behavior plan ...” for the student.

Petitioner appealed the superintendent’s decision to respondent.  In a letter dated March 27, 2018, respondent stated that it had considered and denied petitioner's appeal on March 14, 2018, and that petitioner could appeal its determination to the Commissioner within 30 days.  This appeal ensued.

Petitioner asserts that respondent did not inform petitioner of the short-term suspension in a timely manner and failed to offer her an opportunity for an informal conference or apprise her of her right to question complaining witnesses prior to imposition of the student’s suspension.  Petitioner requests expungement of “any reference to the incident of October 24, 2017” from the student’s record.  Petitioner further requests a determination that respondent improperly “bifurcate[ed] a suspension and a Code of Conduct Violation in assigning student discipline.” 

Respondent asserts that the appeal must be dismissed as untimely and for failure to exhaust administrative remedies.  Respondent maintains that its imposition of discipline was appropriate and that, given its subsequent alteration of the student’s record, there is nothing in the student’s record to expunge and the appeal is moot.

First, respondent contends that the appeal must be dismissed as untimely because petitioner did not, as required by its code of conduct, appeal the student’s suspension to the superintendent within ten days.  Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of J.H. and R.H., 57 Ed Dept Rep, Decision No. 17,317; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578).  Here, respondent’s code of conduct provides for an appeal to the superintendent within ten business days of the principal’s written decision.  If parents are not satisfied with the superintendent’s decision, they must file a written appeal to the board within ten business days of the superintendent’s decision unless they can show that extraordinary circumstances prevented them from doing so.  The code of conduct further states that “[f]inal decisions of the [b]oard may be appealed to the Commissioner of Education within 30 days of the decision.” 

By letter dated October 24, 2017, the principal suspended the student for five days.  By letter dated November 30, 2017, petitioner, through the youth advocate, requested that the principal expunge the short-term suspension.  The principal declined to do so in a letter dated December 12, 2017.  Petitioner subsequently appealed this determination to the superintendent on January 12, 2018.  The superintendent granted petitioner’s appeal in part on February 13, 2018.  Finally, petitioner appealed to respondent, which upheld the determination of the superintendent in a letter dated March 24, 2018. 

While respondent is correct that petitioner did not satisfy the timelines set forth for appealing short-term suspensions set forth in respondent’s code of conduct, there is no evidence in the record that the principal, superintendent or respondent informed petitioner of these timelines or indicated that appeals would not be considered because they were untimely.  Indeed, the principal, superintendent, and respondent each considered and issued determinations on the merits of petitioner’s appeals.  Under these circumstances, I decline to dismiss petitioner’s appeal for failure to exhaust her administrative remedies (see Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334) or any lack of timeliness arising therefrom (see e.g. Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258).

Respondent next asserts that 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  The record indicates that the student has served the October 2017 short-term suspension.  Therefore, I agree with respondent that the appeal is moot insofar as the student has served the entire suspension.  However, it is well-established that a request to expunge a student’s disciplinary record does not become moot simply because the student has served the underlying suspension (Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581; Appeal of E.B. and F.B., 53 id., Decision No. 16,545; Appeal of F.W., 48 id. 399, Decision No. 15,897).  Therefore, petitioner’s claims remain live vis-à-vis her request for expungement.

Respondent also argues that there is nothing to expunge from the student’s record, which merely contains a summary of the October 24, 2017 incident and a notation that the student received a “warning” for his conduct.  Respondent argues that Education Law §3214 only concerns suspensions from instruction, and that no such suspension exists because the student’s record does not reference a suspension.  I am not persuaded by respondent’s argument.  Respondent initially suspended the student from instruction for five days, which was later reduced to three days.  It appears from the record that the student served these three days of out-of-school suspension.  Although respondent has subsequently modified the student’s educational record to indicate that a “warning” was given, the student was, in fact, suspended for three days and is entitled to expungement of the entire incident from his record based upon respondent’s violations of Education Law §3214 and 8 NYCRR §100.2(l)(4).  I have consistently held that the remedy for procedural errors in connection with a short-term suspension is expungement of the incident from a student’s record (see e.g. Appeal of T.S., 57 Ed Dept Rep, Decision No. 17,233).  This remedy necessarily encompasses expungement of the entire disciplinary incident from a student’s record, and not mere alteration of the record to reflect a lesser or different punishment.  Indeed, it would be inaccurate to indicate that the student received a “warning” for his conduct on October 24, 2017.  Therefore, I decline to dismiss the appeal as moot.

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 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 did not, as required by Education Law §3214 and 8 NYCRR §100.2(l)(4), apprise petitioner of her right to an informal conference with the principal or her right to question complaining witnesses (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).  The written notice merely stated that petitioner “ha[s] the right to discuss with the district the charges against [the] student.”  I do not find that this language sufficiently apprised petitioner of her rights pursuant to Education Law §3214 and 8 NYCRR §100.2(l)(4).  Indeed, this language falls short of the specificity required by respondent’s code of conduct, which states that a short-term suspension notice “shall inform the parents of the right to request an immediate informal conference with the [p]rincipal.”  Thus, irrespective of when petitioner received this notice, it is defective on its face which warrants expungement of the student’s suspension.

In any event, the record also supports a finding that petitioner did not receive a copy of the written suspension notice until October 27, 2018, the third day of the student’s five-day suspension, when she received a copy at a CSE meeting.  The record further reflects that October 27, 2018 was the last day of suspension which the student served, as respondent permitted the student to return to school on October 28, 2017.  Holding an informal conference at this point, after a student’s suspension had begun, would have been futile, as the purpose of the written notice requirement is to apprise parents of their rights to question complaining witnesses and have an informal conference with the principal (see Appeal of M.B., 57 Ed Dept Rep, Decision No. 17,406), who then has 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).

Further, to the extent respondent contends that it satisfied its legal obligations by providing oral notice of the suspension, as noted above 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).

Respondent nevertheless argues that its placement of the notice in the mail on October 25, 2017 was appropriate under the circumstances because the student presented a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  However, the written notice of the five-day suspension does not explicitly indicate, as it should have, that the student’s presence in the school would pose a continuing danger or an ongoing threat of disruption (see e.g. Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,111; Appeal of L.Z. and M.S., 56 id., Decision No. 17,034; Appeal of L.L., 51 id., Decision No. 16,334).  Respondent’s failure to set forth this determination in the notice of suspension precludes it from relying upon such rationale on appeal (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,111; Appeal of T.T. and K.T., 52 id., Decision No. 16,386; Appeal of G.B. and B.B., 52 id., Decision. No. 16,383).

I acknowledge that respondent produced some evidence that it attempted to hand-deliver the written notice to the student’s stepfather.  The assistant principal asserts on appeal that he “offered the written letter of suspension” to the student’s stepfather who “declined” and “stat[ed] that his wife handled all those matters.”  Additionally, the principal asserts that he told the student’s stepfather that the secretary “would be preparing a suspension letter that we needed to give to him,” and that the stepfather responded by stating that “he needed to take [the student] home” and that petitioner “deals with all that garbage.”  While the principal’s statement is entitled to some probative value, the assistant principal’s statement is inconsistent with his statement in the October 27, 2017 email that he told his secretary to hand-deliver the letter to the stepfather “but apparently that did not happen.”  The assistant principal’s statement in the email suggests that he lacked knowledge as to whether the letter was delivered or not. 

Regardless, even if I found that respondent made diligent efforts to deliver the notice to the student’s stepfather and that he knowingly refused to accept such notice, I have already found the written notice to be defective on its face because it did not sufficiently apprise petitioner of her right to an informal conference with the principal or her right to question complaining witnesses (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).  Therefore, the student is entitled to expungement of the incident from his disciplinary 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 from the student’s record all references to the student’s short-term suspension for three days between October 25, 2017 and October 27, 2017 and the subsequent “warning” placed in his file.

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