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

Decision No. 17,616

(April 11, 2019)

Bond, Schoeneck & King PLLC, attorneys for respondent, Jennifer M. Schwartzott and Claire G. Bopp, Esqs., of counsel

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

At the time of the events giving rise to this appeal, the student attended eighth grade in respondent’s middle school.  According to the record, on March 13, 2018, the student hit her head when a classmate pushed her into a locker.  The student proceeded to chase after the classmate.  The student was eventually detained and, on her way back to class, pushed another student.

In a letter dated March 13, 2018 signed by the middle school principal and vice principal, petitioner was notified that the student was suspended for three days (from March 14 through May 16, 2018) for what the letter described as “[m]isconduct.”

In a letter to the superintendent and respondent dated April 11, 2018, petitioner requested that the superintendent and respondent “re-evaluate the circumstances” of the student’s suspension.  Petitioner argued that the student’s actions on March 13, 2018 were attributable to the head injuries she sustained when her classmate pushed her into the locker.  As evidence, petitioner submitted a letter from the student’s treating physician.

In a letter dated April 18, 2018, the superintendent indicated that he had “reviewed the circumstances of the March 13, 2018 incident” and had “provided a copy of [petitioner’s] letter to each Board Member in Executive Session during [a] Regular Meeting on April 12, 2018.”  Based upon his review, the superintendent found “no reason to change or amend the decision of the Middle School Administration.”[1]

Petitioner thereafter requested that respondent expunge the student’s short-term suspension.  In a letter dated June 18, 2018, the district clerk stated that respondent had considered her appeal at a board meeting on June 14, 2018 and declined to expunge the suspension from the student’s record.  This appeal ensued.

Petitioner contends that the student’s suspension must be expunged from her record because the written notice informing her of the suspension did not apprise her of her right to question complaining witnesses.  Petitioner further argues that the written notice was not reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension because it was sent via regular mail and received on March 15, 2018, the second day of the student’s suspension.  Petitioner seeks expungement of the suspension from the student’s record.

Respondent argues that it provided timely and sufficient written notice of the student’s suspension.  Respondent further argues that petitioner is precluded from arguing that the written notice was defective or not sent by means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension because she did not raise such concerns to respondent below.

First, respondent contends that petitioner is precluded from raising challenges regarding the sufficiency or timeliness of the written notice because she did not raise such concerns to respondent below.  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 D.O., 53 id., Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578).

Here, although petitioner sought review of the student’s suspension from the superintendent and respondent, there is no evidence in the record that respondent has adopted a policy requiring students to appeal short-term suspensions to the superintendent or board of education.  Respondent does not allege that such a policy exists and has not submitted a copy of its code of conduct on appeal.  Additionally, as petitioner notes in her reply, the March 13, 2018 written notice does not indicate that petitioner was required to appeal her short-term suspension to the superintendent or board prior to commencing an appeal pursuant to Education Law §310.  In the absence of proof of such requirement or notice thereof, I will not dismiss the appeal for failure to exhaust administrative remedies (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).  Therefore, I do not find that petitioner’s requests below preclude her from challenging the sufficiency and timely provision of the written notice in this appeal.

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., 48 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).

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).

On this record, I find that the written notice is defective because it did not apprise petitioner of her right to question complaining witnesses as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) (see Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of S.K., 56 id., Decision No. 17,031).  Although the written notice indicated that petitioner was “entitled to an immediate informal conference with the principal,” the letter does not apprise petitioner of her right to question complaining witnesses.  As such, the written notice violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of S.K., 56 id., Decision No. 17,031).

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.  Respondent indicates that the written notice “was mailed to Petitioner on March 14, 2018” and argues that this was “within ... (24) hours of the incident giving rise to the suspension.”  However, this misstates the requirement of Commissioner’s regulation §100.2(l)(4), which is to ensure receipt, not mailing, of the written notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]).

Additionally, as noted above, Commissioner’s decisions have repeatedly held that sending the written notice by regular mail, as respondent did here, does not satisfy 8 NYCRR §100.2(l)(4) (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).  Petitioner alleges, and respondent does not contest, that she received the written notice in the mail on March 15, 2018, the second day of the student’s three-day suspension.  Thus, on this record, I find that the written notice was not delivered to petitioner until the second day of the student’s three-day suspension, which violated 8 NYCRR §100.2(l)(4) (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).

Additionally, 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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

Therefore, based upon the above deficiencies with the written notices, the student’s five-day suspension must be expunged from her 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).

Given 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 between March 14, 2018 and March 16, 2018.

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