Appeal of A.D. and J.H., on behalf of their child, from action of the Board of Education of the Onteora Central School District regarding student discipline.

Decision No. 18,391

(March 18, 2024)

Lorraine McGrane, Esq, attorneys for petitioner, Lorraine McGrane, Esq., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Steven L. Banks, Esq., of counsel

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

On March 2, 2023 the student entered a classroom and requested that a classmate pay him money because he lost a bet.  According to the teacher of the classroom, the student “star[ed] at the [other] student with intimidation” when he made this request.  The principal thereafter assigned the student to in-school suspension for the remainder of the day. 

By letter dated March 2, 2023, the principal informed petitioners that the student would serve a single day of out-of-school suspension on March 3, 2023 for “Bullying/Harassment.”  The principal also informed petitioners of their right to request an informal conference and to confront complaining witnesses.  The principal additionally asserted that the student presented a continuing danger “and/or” ongoing threat of disruption to the academic process.

On March 9, 2023, the principal and assistant principal met with petitioners for an informal conference.  Following this conference, the principal upheld the suspension.

On March 31, 2023, petitioners appealed the principal’s determination to respondent.  In a letter dated April 12, 2023, respondent affirmed the principal’s decision.  This appeal ensued. 

Petitioners argue that the assistant principal, in fact, suspended the student.  Petitioners also allege that respondent failed to provide them with timely written notice prior to the student’s suspension.  Petitioners also argue that the classroom teacher was the complaining witness and should have appeared at the informal conference.  For relief, petitioners request expungement of the short-term suspension from the student’s record. 

Respondent denies petitioner’s contentions and argues that the short-term suspension complied with State law and regulations.

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 instant appeal is materially indistinguishable from Appeal of J.B.W. and must be sustained for the reasons described therein.[1]  There, as here, respondent failed to show that it delivered written notice of the suspension to petitioners as soon as “reasonably practicable” (Education Law § 3214 [3] [b] [1]; 8 NYCRR 100.2 [l] [4]).  The record reflects that respondent sent a copy of the notice by regular mail on March 2, 2023 and called each petitioner to notify them of the suspension on March 2 or 3, 2023.[2]  Similar efforts were deemed insufficient in Appeal of J.B.W. and remain so here.  As such, petitioners have demonstrated that respondent failed to deliver legally sufficient notice as soon as reasonably practicable.

In light of this determination, I need not address the parties’ remaining arguments.

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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