Appeal of S.D.G., on behalf of her child, from action of the Board of Education of the Herricks Union Free School District regarding student discipline.

Decision No. 18,361

(December 12, 2023)

Ingerman Smith, LLP, attorneys for respondent, Matthew Guerra, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from a decision of the Board of Education of the Herricks Union Free School District (“respondent” or “board”) to suspend her child (“the student”).  The appeal must be dismissed.

During the 2022-2023 school year, the student attended respondent’s high school.  On May 10, 2023 the student engaged in what the principal describes on appeal as “inappropriate sexual conduct.”[1]  Following written notice and an informal conference, the principal suspended the student for five days in May 2023.  This appeal ensued.

Petitioner argues that the student engaged in the charged conduct due to mental health and medical issues.  Petitioner requests the expungement of the student’s five-day suspension based on the student’s “good standing academic record” and her lack of “prior disciplinary incidents.”

Respondent argues that petitioner has failed to explain why suspension was not warranted in this instance.  Respondent asserts that it was unaware of one of the student’s diagnoses at the time she was suspended.  Respondent further argues that a five-day suspension was reasonable under the circumstances.

Education Law § 3214 (3) (a) authorizes a board of education, board of trustees, sole trustee, superintendent of schools, district superintendent, or principal of a school to suspend a “pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.”  The decision to suspend a student from school pursuant to Education Law § 3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 140-141 [1997]; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37, 39 [3d Dept 2002]; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).

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).

Petitioner has not met this burden.  While petitioner identifies several reasons why she believes the suspension was excessive, she has not explained the nature of the student’s conduct that gave rise to the suspension.  Without knowing what the student did, it is impossible to determine whether the penalty respondent imposed is shocking to the conscience (see generally Appeal of E.R., 63 Ed Dept Rep, Decision No. 18,309; Appeal of K.P., 61 id., Decision No. 18,055).

Nothing would preclude respondent from electing to expunge the suspension on its own.  Petitioner describes several mitigating circumstances on appeal,[2] including a diagnosis of which the principal was unaware when she issued the suspension.[3]  Nevertheless, petitioner has not demonstrated a legal entitlement to such relief in connection with this appeal.

THE APPEAL IS DISMISSED.

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