Appeal of L.D. and M.D., on behalf of their child, from action of the Board of Education of the East Moriches Union Free School District regarding student discipline.

Decision No. 18,502

(October 7, 2024)

Brill Legal Group, P.C., attorneys for petitioners, Peter E. Brill, Esq., of counsel

Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, attorneys for respondent, Frank A. Isler, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the East Moriches Union Free School District (“respondent”) to impose discipline upon their child (“student B”).  The appeal must be sustained.

On Saturday, October 28, 2023, a parent emailed respondent’s middle school principal a picture of a student (“student A”) holding a gun.  The parent indicated that her child received the picture “in a group chat ....”  The principal contacted the local police, who investigated. 

Early in the morning on Sunday, October 29, 2023, a police officer informed the principal that the gun portrayed in the photograph was a BB gun.  Student A’s parents had surrendered the BB gun to the police and consented to its destruction.  The investigating officer further informed the principal that student A “did not pose an actual threat to school safety and that school should remain open on Monday as usual.” 

Later that day, at 2:57 p.m., the principal issued a statement to the school community.  This statement indicated, in part, that “at no time was a threat made toward a student, any member of our school community or the school.”

Later that evening, the principal learned that student B, the student who is the subject of this appeal, had shared the photograph of student A in a group chat.  The principal proceeded to contact petitioners, “notif[ying]” them that they had to “attend a suspension meeting with [him] on Monday ....”

On Monday, October 30, 2023 at 10:30 a.m., petitioners met with the principal.  Thereafter, he “issued [a] five day suspension” of student B.  Petitioners appealed this decision to respondent, which affirmed the principal’s determination.  This appeal ensued.

Petitioners argue that student B was improperly excluded from school prior to an opportunity for an informal conference.  They further contend that student B’s actions were taken out of context and did not warrant discipline.  For relief, they seek expungement of the suspension from student B’s record.  

Respondent contends that the student engaged in misconduct for which it permissibly imposed discipline.

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).

The record reflects that respondent improperly suspended student B prior to offering petitioners an opportunity for an informal conference.  On the evening of Sunday, October 29, 2023, the principal “informed [p]etitioners that [student B] ... would not be permitted to attend school the following day until [p]etitioners had a meeting regarding the incident.”[1]  Petitioners subsequently met with the principal around 10:30 a.m. on Monday, October 30, 2023.  Student B was not allowed to attend school prior to that time.

Respondent could only have proceeded in this manner if it deemed the student a continuing danger or ongoing threat of disruption.  However, the principal made no such determination in the notice of suspension.  It is well established that a continuing danger determination must be set forth in the notice of suspension (Appeal of L.O., 62 Ed Dept Rep, Decision No. 18,267; Appeal of a Student with a Disability, 60 id., Decision No. 17,988; Appeal of T.F., 60 id., Decision No. 17,916; Appeal of a Student with a Disability, 56 id., Decision No. 17,111; Appeal of T.T. and K.T., 52 id., Decision No. 16,386).

Moreover, the record does not support a finding that student B’s presence constituted a continuing danger or ongoing threat of disruption.  As indicated above, the local police department concluded, prior to student B’s suspension, that student A “did not pose an actual threat to school safety and that school should remain open on Monday as usual” (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,610).  The principal’s statement to the community similarly stated that there was no legitimate threat to students or the school community (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988).  As such, student B’s suspension must be expunged from his record (Appeal of J.F., 61 Ed Dept Rep, Decision No. 18,129).

Given the disposition of this appeal, 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 student B’s record.

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