Appeal of D.W., on behalf of his child, from action of the Board of Education of the Goshen Central School District regarding student discipline.

Decision No. 18,370

(January 8, 2024)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David A. Shaw, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Goshen Central School District (“respondent”) related to discipline imposed on his child (the “student”).  The appeal must be sustained.

The student attended ninth grade in respondent’s high school during the 2022-2023 school year.  On Friday, September 9, 2022 at 12:14 p.m., the student recorded a four-second video in the school cafeteria of a school security guard breaking up an altercation between two students using her personal cell phone.  Respondent imposed a one-day out-of-school suspension that the student served on Monday, September 12, 2022.  Petitioner appealed the short-term suspension to the superintendent, who denied the appeal on September 12, 2022.  Respondent affirmed the superintendent’s determination on October 5, 2022.  This appeal ensued.   

Petitioner generally complains of the procedure by which the suspension was imposed and asserts that the suspension was excessive.  He seeks, among other relief, expungement of the student’s suspension from her record.  

Respondent argues that the appeal must be dismissed for failure to demonstrate a clear legal right to the relief requested. 

The appeal must be sustained for insufficient notice.  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 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). 

The parties agree that the high school principal “issued” the day of out-of-school suspension on September 9, 2022, the day the student recorded the video, and that this suspension was served on Monday, September 12, 2022.[1]  The record contains no further information as to how respondent informed petitioner of this determination.  While both parties submitted a copy of an undated written notice of suspension, neither explained how, or when, it was transmitted to petitioner.  Even assuming the facts most favorable to respondent—that petitioner received the written notice on the afternoon of September 9, 2022—this left little to no time to request a meeting with the principal.  The notice indicates that the “proposed” suspension would go into effect if petitioner did not request an informal conference within 24 hours.  However, school ended just a few hours after the disciplinary incident and did not resume until the following Monday.  Indeed, it appears that petitioner was only able to meet with the superintendent on the morning of September 12, 2022—the same day the student was required to serve her suspension.[2]  “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” (Appeal of J.F., 61 Ed Dept Rep, Decision No. 18,129; see also Appeal of R.M. and C.M., 63 id., Decision No. 18,344).  As such, I find that petitioner was not afforded an opportunity to request an informal conference.[3]

While the appeal must be sustained for the reasons described above, I am compelled to comment on the superintendent’s opinion that the student’s conduct “require[d] a disciplinary response that [was] a deterrent not only to the student ... but also to the rest of the student body should there be subsequent incidents.” Given the confidentiality of student disciplinary records, suspensions cannot serve as a “deterrent” to others.  Indeed, the superintendent recognized this when he informed petitioner that he could not “speak to the exact discipline” of another student who “videorecord[ed] this situation on [his or her] phone [].”[4]  I remind respondent of its obligation to ensure the confidentiality of student disciplinary records.

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.

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