Appeal of J.F., on behalf of her child, from action of the Board of Education of the Great Neck Union Free School District regarding student discipline.

Decision No. 18,129

(June 6, 2022)

           Vincent Lentini, Esq., attorney for petitioner

           Frazer & Feldman, attorneys for respondent, Dennis O’Brien, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Great Neck Union Free School District (“respondent”) to suspend her child (“the student”).  The appeal must be sustained.

During the 2020-2021 school year, the student attended sixth grade in respondent’s district.  On the evening of February 24, 2021, the student participated in a group text chat including multiple district students.  One of the individuals involved in the group chat reported that the student had used threatening language toward other middle school students.  On February 25, 2021, the district interviewed students and obtained screenshots of the text messages.  On February 26, 2021, the district interviewed the student at the end of the school day.  He acknowledged sending the text messages in question.

In a letter dated February 26, 2021, the middle school principal notified petitioner that he had “suspended [the student] from school for a period of 2 days, Monday March 1st, 2021, and Tuesday March 2nd, 2021.”  The reason given for the suspension was that the student “threatened another student twice in a group chat.”  The principal further asserted that the student’s “continued presence in school pose[d] a continuing danger and or an ongoing threat of disruption to the academic process.”  The principal also indicated that the student would be “subject to arrest” if he appeared on campus during his suspension.  Petitioner appealed this suspension to the superintendent and respondent; her appeals were denied.  This appeal ensued.

Petitioner argues that the student should not have been suspended because the alleged incident occurred on a group chat outside of district property and outside of school hours.  She also argues that the student’s presence in school did not pose a continuing danger or an ongoing threat of disruption to the academic process.  Petitioner requests expungement of the suspension 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 its decision to suspend the student was rational and complied with its code of conduct.

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 proposed the suspension in the first instance and 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 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Respondent failed to provide petitioner with legally sufficient written notice prior to the imposition of the student’s short-term suspension.  In the February 26, 2021 suspension letter, the principal wrote:  “I have suspended your son … from school,” identifying the disposition as a two day out of school suspension.  Thus, respondent reached a decision to suspend the student before offering petitioner the opportunity for an informal conference with the principal, at which she could question complaining witnesses, in violation of 8 NYCRR 100.2 (l) (4) (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988; Appeal of a Student with a Disability, 59 id., Decision No. 17,846; Appeal of a Student with a Disability, 58 id., Decision No. 17,553).

Respondent cannot seek refuge in the continuing danger/ongoing threat of disruption exception as the record does not support the principal’s assertion that the student sent a text message threatening action that would allegedly take place on February 26, 2021.  In this message, the student indicated, in relevant part, that he would “BEAT [someone] TOMORROW.”  Petitioner indicates that the student sent the relevant text message “on a Friday night,” which would have been February 19, 2021 at the latest, while respondent asserts that the student sent the message “[o]n or about February 24, 2021.”  Under either scenario, the “tomorrow” referenced in the text message had already passed by February 26.  Even assuming that respondent believed that there was a risk of violence on February 26, school officials waited to interview the student until 2:30 p.m.  Respondent’s lack of action until that time belies any claim of imminent harm.

While the appeal must be sustained for the reasons explained above, I am compelled to make two additional observations.  First, the timing of respondent’s actions impeded petitioner’s right to an informal conference.  Respondent hand delivered the notice on the afternoon of Friday, February 26 and the student’s suspension began on Monday, March 1.  Leaving zero school hours between delivery of the notice and the beginning of a suspension precludes the ability to request and convene an informal conference (see Appeal of T.H., 56 Ed Dept Rep, Decision No. 17,049 [notice of suspension hand delivered after school on October 22; informal conference held at 8:30 a.m. on October 23 was improper where suspension began that day and school day began at 7:30 a.m.]).

Second, respondent’s indication that the student would be “subject to arrest” if he appeared on campus while suspended was inappropriate under the circumstances.  There is no evidence to suggest that the student—who has a disability and was in sixth grade at the time of the appeal—presented an actual threat.  Respondent should carefully consider whether, if ever, it is appropriate to include such a notation in a notice of short-term suspension.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent expunge any reference to the short-term suspension at issue in this appeal from the student’s record.

END OF FILE