Appeal of P.F., on behalf of her son J.F., from action of the Board of Education of the Highland Falls-Fort Montgomery Central School District regarding student discipline.

Decision No. 17,737

(August 22, 2019)

Shaw, Perelson, May & Lambert, LLP, attorneys for petitioner, Margo L. May, Esq., of counsel

ELIA., Commissioner--Petitioner challenges the three-day suspension of her son, J.F. (the “student”), and requests that the Board of Education of the Highland Falls-Fort Montgomery Central School District (“respondent”) be directed to expunge the suspension from J.F.’s record.  The appeal must be sustained.

On January 24, 2019, the student brought a knife or utility tool to school and showed it to other students in violation of respondent’s code of conduct.  On that same day, the elementary school principal notified petitioner that the student had violated the code of conduct and that the proposed discipline would be a three-day suspension, the least severe consequence contemplated by the school’s code of conduct for bringing a weapon to school.

Petitioner requested an informal conference, which was held on January 25, 2019.  Petitioner and the elementary school principal were present at the conference.  Petitioner’s request that the student be allowed to attend to present his version of events was denied.  Petitioner’s request for an opportunity to question complaining witnesses was also denied.  In a letter dated January 25, 2019, the principal found the student guilty of the charged conduct and suspended the student for three days.  This appeal ensued.

I must first address a procedural matter.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).

In this case, the petition was served on February 13, 2019, and the answer was served on March 6, 2019.  Therefore, respondent’s answer was served one day beyond the 20-day deadline, and no excuse was given for the delay.  As a result, I will not consider respondent’s answer, and the factual allegations in the petition will be deemed to be true.

Petitioner raises procedural and substantive objections to the short-term suspension.  Petitioner argues that the principal’s refusal to allow her to question complaining witnesses violated the student’s due process rights, that the object the student brought to school was a “utility tool” and not a weapon, that the student did not threaten anyone, that the suspension was harsh and excessive, and that the decision to suspend was arbitrary and capricious.  Petitioner requests that the suspension be expunged from the student’s records.

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]).

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 this case, petitioner met with the elementary school principal on January 25, 2019 before the suspension was imposed.  However, the record indicates that the principal was not present at the school on the morning that the student brought in the utility knife.  The complaining witness is not identified in the record; thus, there is no basis upon which I could conclude that the principal was the complaining witness (see Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,836).  The principal did not witness the conduct and there is no other evidence in the record suggesting that she could be considered a complaining witness (Appeal of R.N.T. and M.T., 47 Ed Dept Rep 298, Decision No. 15,702; Appeal of J.Z., 47 id. 243, Decision No. 15,681).  Additionally, there is no evidence in the record suggesting, for example, that a student was the complaining witness and the principal declined to produce such student witness out of concern for the safety of the student, as in Appeal of C.M. (53 Ed Dept Rep, Decision No. 16,583).  In the petition, petitioner alleges that the principal summarily denied her the right to question complaining witnesses at the informal conference, and there is no evidence in the record that contradicts this allegation.

Moreover, Education Law §3214(3)(b)(1) gives both the student and the parent the right to question complaining witnesses upon request, and petitioner alleges that the principal denied such request by the student.  On the record before me, I am constrained to find that the district violated the student’s due process rights by not allowing the student to present his version of events and by not allowing petitioner and the student the opportunity to question the complaining witness or witnesses before the suspension was imposed.  Accordingly, the suspension must be annulled and expunged from the student’s record (see e.g. Appeal of R.N.T. and M.T., 47 id. 298, Decision No. 15,702).

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the three-day suspension of J.F. be annulled and expunged from his record.

END OF FILE