Appeal of D.B. and S.B., on behalf of their child, from action of the Board of Education of the Hudson Falls Central School District regarding student discipline.

Decision No. 18,271

(May 11, 2023)

FitzGerald Morris Baker Firth P.C., attorneys for petitioner, John D. Aspland, Jr., Esq., of counsel

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Karla Williams Buettner, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal a determination of the Board of Education of the Hudson Falls Central School District (“respondent”) to impose discipline on their child (the “student”).  The appeal must be sustained. 

During the 2022-2023 school year, the student attended ninth grade in respondent’s high school.  The student allegedly shared inappropriate music lyrics with other students.[1]  On November 14, 2022, an assistant principal called petitioners to inform them that the student had violated respondent’s code of conduct, warranting a five-day suspension, and that petitioners could speak to the high school principal about the matter.  Petitioners met with the high school principal on November 15, 2022.  By notice dated November 16, 2022, the principal informed petitioners of the suspension, stating “I have suspended your [child] … for five school days” and that the suspension would begin that day.  The letter further advised petitioners of their rights to an informal conference and to question witnesses.  By letter dated November 22, 2022, the principal informed petitioners that he had investigated the concerns that they raised at the November 15 meeting but decided to affirm the student’s five-day suspension. 

Petitioners appealed to respondent’s superintendent.  By letter dated December 8, 2022, the superintendent amended the student’s discipline record to strike any reference to her authorship of the lyrics but otherwise upheld the suspension.  Petitioners appealed to respondent, which denied their appeal.  This appeal ensued.

Petitioners argue that respondent violated the student’s right to due process under Education Law § 3214 by failing to provide her with a basis for her suspension, suspending her prior to issuing legally sufficient written notice, and by denying them their right to an informal conference.  Petitioners further argue that the student’s alleged conduct did not violate respondent’s code of conduct. 

Respondent argues that it complied with Education Law § 3214 and that its decision to suspend was based on competent and substantial evidence.[2]

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 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 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).

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).

Petitioners have proven that respondent failed to provide legally sufficient written notice prior to imposing the five-day suspension.  Although petitioners discussed the matter with the principal on November 15, 2022, “[h]olding an informal conference with the principal does not excuse the requirement for written notification to students and their parents … explaining their rights to the conference and the opportunity to question complaining witnesses prior to the suspension” (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988; see also Appeal of S.K. and J.K., 59 id., Decision No. 17,782 Appeal of R.J. and D.J., 44 id. 191, Decision No. 15,145).  Additionally, any phone conversation between petitioners and an assistant principal—who was not authorized to impose a suspension—does not excuse respondent’s failure to provide timely written notice (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

In response, respondent argues that petitioners generally received notice of their rights.  The Commissioner, however, has repeatedly rejected such arguments within the context of short-term suspensions (see e.g. Appeal of M.B. and A.W., 57 Ed Dept Rep, Decision No. 17,378 [“... the fact that petitioners were offered an informal conference and in fact met with the principal to review the evidence does not excuse respondent’s failure to provide proper written notice”]; Appeal of S.K., 56 id., Decision No. 17,031).  Moreover, respondent does not engage with the specific deficiencies or decisions of the Commissioner identified above.  Thus, I find its argument unpersuasive.

Additionally, the suspension must be expunged because the principal improperly decided to suspend the student before providing petitioners with legally sufficient written notice.  This is reflected in the written notice, which states:  “I have suspended your [child].”  Such predetermination defeats the purpose of the written notice requirement: to afford the principal the opportunity to decide whether the original decision to suspend was correct or should be modified (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988; Appeal of C.B., 59 id., Decision No. 17,840).[3]  The informal conference is not a mere technicality.  It ensures that school districts have an adequate understanding of the events leading to alleged misconduct.  This, in turn, mitigates the risk that a student is not improperly suspended for days, weeks—or even months (see Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,929).

Based upon the above deficiencies, the student’s suspension must be expunged from her record.  In light of this disposition, I need not address the parties’ remaining contentions.

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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