Appeal of J.B.W., on behalf of her child, from action of the Board of Education of the City School District of the City of Buffalo regarding student discipline.

Decision No. 18,205

(October 18, 2022)

The Legal Aid Bureau of Buffalo, Inc., attorneys for petitioner, Carolyn Hite, Esq., of counsel

Nathaniel Kuzma, General Counsel for the Board of Education of the Buffalo City School District, attorney for respondent, Robert E. Quinn, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Buffalo (“respondent”) to impose discipline upon her child (“the student”).  The appeal must be sustained to the extent indicated.

On the afternoon of February 7, 2022, two students in one of respondent’s schools fought in a school hallway.  The student recorded this altercation on her cellphone.  Respondent later learned that one of the participants posted a recording of the fight online.

At approximately 5:00 p.m. that afternoon, the high school principal spoke with petitioner by phone.  The student joined the call and admitted that she had recorded the fight on her cellphone.  The principal then informed petitioner that the student would be suspended for five days.

On February 8, 2022, respondent mailed a notice of short-term suspension to petitioner.  This notice reflected that the student was suspended from February 8 through 14, 2022.

The principal asserts that, on February 9, 2022, she provided notice of the short term suspension as an email attachment to petitioner and her counsel.

Petitioner received written notice of the short-term suspension by mail on February 10, 2022, the third day of the student’s suspension.  This appeal ensued.

Petitioner argues that the student was improperly suspended before she received notification of her rights to an informal conference and to question complaining witnesses.  Petitioner further objects to respondent’s delivery of alternative instruction via remote instruction.  Petitioner seeks expungement of the student’s suspension and a directive that alternative instruction be delivered in person.

Respondent contends that the appeal must be dismissed for failure to exhaust administrative remedies.  On the merits, respondent argues that the student posed a continuing danger or ongoing threat of disruption, thus justifying her immediate suspension prior to receipt of the notice. 

Turning first to the issue of exhaustion, 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).  Such policy must be reasonable and clearly communicated to parents (see Appeal of Halpern and Halpern, 58 Ed Dept Rep, Decision No. 17,480; Appeal of D.O., 53 id., Decision No. 16,543).

Here, while respondent has adopted a local policy requiring that appeals of short-term suspensions be presented to the board prior to the Commissioner of Education, I decline to apply it under the circumstances.  This appeal is indistinguishable from Appeal of D.O. (53 Ed Dept Rep, Decision No. 16,543), where “the suspension letter … contain[ed] no notice of [the exhaustion] requirements” and “merely state[d] that [the student’s] conduct was “a violation of the District’s code of conduct ….”  Similarly, here, respondent has failed to establish that the exhaustion requirement was “clearly communicated” to petitioner, a prerequisite to its application.  As such, I decline to dismiss the appeal for failure to exhaust administrative remedies.

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 written notice of a short-term suspension shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to ensure 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 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).

Here, respondent contends that it was not required to deliver a copy of the short-term suspension notice prior to imposition of the student’s suspension because the student presented a continuing danger to persons or property and/or an ongoing threat of disruption to the academic process.  Even assuming the validity of this determination, however, respondent remained obligated to deliver the notice as soon as “reasonably practicable,” which it has not shown (Education Law § 3214 [3] [b] [1]; 8 NYCRR 100.2 [l] [4]).  Respondent merely sent the notice by regular mail, which the Commissioner has repeatedly deemed an insufficient method of delivery (see Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).  Similarly, the principal’s telephone communication did not provide petitioner with sufficient notice (see Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309).  Finally, to the extent the principal’s February 9, 2022 email communication may constitute sufficient notice,[1] respondent has not explained how or why it took almost 48 hours to transmit notice via email.  Thus, I cannot find that respondent delivered legally sufficient notice “as soon after the suspension as [was] reasonably practicable” (Education Law § 3214 [3] [b] [1]; 8 NYCRR 100.2 [l] [4]).

Finally, I decline to find that remote instruction is per se inappropriate as a modality for delivering alternative instruction.  Education Law § 3214 (3) (e) requires that a student of compulsory school age who is suspended from school receive alternative instruction.  Alternative instruction must be substantially equivalent to that received by the student prior to the suspension (Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159; Appeal of R.S., 48 id. 215, Decision No. 15,841), and equivalency will be determined on a case-by-case basis (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of A.L., 42 id. 368, Decision No. 14,883).  Thus, whether a student can meaningfully benefit from remote instruction is a decision that must be made at the local level based upon each student’s unique circumstances.[2]

To the extent they are not addressed herein, respondent’s remaining arguments are without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

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