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Decision No. 18,528

Appeal of B.B. and H.B., on behalf of their child, from action of the Board of Education of the City School District of the City of Glens Falls regarding student discipline.

Decision No. 18,528

(November 25, 2024)

William E. Montgomery, III, Attorney at Law, attorneys for petitioner, William E. Montgomery, III, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondent, Erin R. Morris and Victoria Mosley, Esqs., of counsel

ROSA., Commissioner.--Petitioners appeal the decision of the Board of Education of the City School District of the City of Glens Falls (“respondent”) to impose discipline on their child (the “student”).[1]  The appeal must be sustained.

The student was enrolled in respondent’s universal pre-kindergarten (“UPK”) program for the 2022-2023 school year.  On May 9, 2023, school employees learned that the student may have inappropriately touched two preschool classmates on the playground on the preceding day. 

On May 10, 2023, the principal suspended the student for, according to a letter sent to petitioners, “First Offense, Sexual Assault, forcible sexual offense; involving forcible compulsion.”  The letter stated that the student was suspended for five days and could not return to school until she completed an “evaluation” and met with the superintendent.  Petitioners appealed this determination to the superintendent, who upheld the suspension and its attendant conditions.

On June 5, 2023, petitioners attempted to drop the student off at school.  The principal then contacted petitioners and informed them that the student “could not attend school ... until [a] reentry meeting was held” with the superintendent.

On June 6, 2023, petitioners received notice that the superintendent intended to convene a long-term suspension hearing concerning the student’s conduct.  The district purported to convene the hearing under Education Law § 3214,[2] charging the student as follows:

  1. On or about May 8, 2023, [the student] engaged in inappropriate physical contact with her classmates.  More specifically, while on the playground, [the student] touched the private areas on two different female students.
  2. By engaging in the conduct described above, [the student] also violated provisions of the Glens Falls City School District Code of Conduct and other policies of disorderly conduct or behavior.

The superintendent appointed a hearing officer, who presided over the hearing and found the student guilty of both charges.  The hearing officer recommended suspension of the student from May 8, 2023, through the remainder of the 2022-2023 school year as well as “counseling as deemed appropriate ....”  The superintendent adopted the recommendation as to guilt but modified the suspension period to five days.  On appeal, respondent affirmed the superintendent’s determination.  This appeal ensued.

Petitioners argue that respondent failed to establish the student’s guilt and denied them due process.  Petitioners further contend that suspension was inappropriate under the circumstances as the student did not comprehend the wrongfulness of her actions.  For relief, petitioners seek expungement of the student’s suspension from her record.

Respondent argues, among other contentions, that it permissibly suspended the student and that petitioners failed to demonstrate a clear legal right to the requested relief.

The appeal must be sustained as I find the suspension of preschool students, under any circumstances, to be shocking to the conscience (see e.g. Appeals of E.F., 64 Ed Dept Rep, Decision No. 18,494).  I have previously written of the dangers of exclusionary discipline (Appeal of N.V.D., 60 Ed Dept Rep, Decision No. 17,985 [quoting, and relying upon, a 2019 resolution of the Board of Regents]).  Among other things, suspension disproportionately affects certain groups, “can be the first step in a series of events” leading to negative student outcomes, and “adversely impacts school climate” (id.).  These concerns are particularly pronounced in preschool, where students are “building the early foundation of learning, health and wellness needed for success in school and later in life.”[3]

In 2015, the United States Departments of Health and Human Services (“HHS”) and Education (“USDOE”) opined that the suspension of preschool and elementary school students “should be prevented, severely limited, and eventually eliminated.”[4]  These agencies explained that

[d]uring these years, children’s brains are developing rapidly, influenced by the experiences, both positive and negative, that they share with their families, caregivers, teachers, peers, and in their communities.  A child’s early years set the trajectory for the relationships and successes they will experience for the rest of their lives, making it crucial that children’s earliest experiences truly foster — and never harm — their development.[5]

Respondent ignored these realities in addressing this incident as a disciplinary matter.  It is unreasonable to expect preschool students—who are, at most, five years old—to comprehend the gravity of their actions.

The facts of this appeal prove the point.  The district’s social worker testified that she spoke with the student on May 10, 2023.  The social worker recalled that the student seemed “nervous” and “hesita[nt]” to discuss what transpired on the playground.  Based on this, the social worker concluded that the student likely “kn[e]w that [her behavior was] wrong.”  While the student may have understood her actions were socially undesirable, the import of touching another’s genitals is beyond the ken of a four or five-year-old.  Respondent’s social worker acknowledged as much at the hearing, testifying that the student may have engaged in such conduct due to self-exploration or because she previously observed or experienced similar conduct.  There is no evidence that respondent considered these possibilities in imparting an adult level of responsibility to the student.[6]

It may be necessary to remove UPK students from the classroom environment “as a last resort in extraordinary circumstances where there is a determination of a serious safety threat ....”[7]  However, any such removal should be extremely limited in time—and should not be considered a punishment.

Suspension “has long-term, cumulative, and negative effects on students—especially our students of color and with disabilities—and does nothing to solve the underlying issues or root causes that caused the initial misbehavior.”[8]  It has no place in New York’s UPK programs, where it “contribute[s] to setting many young children’s educational trajectories in a negative direction ....”[9]  Accordingly, the student’s suspension, which was served, must be expunged from her record.

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 disciplinary events described herein.

END OF FILE

 

[1] Petitioners also named the superintendent in this matter.  However, petitioners are appealing from a final decision of the board.  As such, there is no purpose in naming or joining the superintendent (Appeal of Russo, 63 Ed Dept Rep, Decision No. 18,368).

 

[2] Education Law § 3214 is part of the compulsory school act; as such, it only pertains to suspension “from required attendance upon instruction” (Education Law § 3214 [3] [a]; Appeal of R.P. and M.P., 64 Ed Dept Rep, Decision No. 18,510).  Because students are not required to attend UPK, only the minimum requirements of notice and a hearing prior to suspension would apply (Education Law § 3205 [1], [3]; see generally Goss v Lopez, 419 US 565, 579 [1975]; Appeal of R.M. and C.M., 63 Ed Dept Rep, Decision No. 18,344).  Nothing would preclude a district, however, from offering procedural protections that exceed those requirements.

 

[3] U.S. Dep’t of Health and Human Services and U.S. Dep’t of Education, “Policy Statement on Expulsion and Suspension Policies in Early Childhood Settings” (2015) at p. 2, available at https://eclkc.ohs.acf.hhs.gov/sites/default/files/pdf/policy-statement-expulsion-suspension.pdf (last accessed Nov. 12, 2024).  Additionally, “[s]ome ... children may have undiagnosed disabilities or behavioral health issues and may be eligible for additional services.”  Exclusionary discipline results in these students “not receiv[ing] the evaluations or referrals they need to obtain services” (id. at p. 3).

 

[4] Id. at p. 2.  The Safe Schools Task Force Report cited this guidance with approval in a 2022 report.  Safe Schools Task Force, “Recommendations for Reducing Disparities in and Reforming School Discipline in New York State” (Dec. 2022) at p. 25, available at https://regentsdev-acquia.nysed.gov/sites/regents/files/P-12%20-%20Recommendations%20for%20ATT%20-%20Recommendations%20for%20Reducing%20Disparities%20in%20and%20Reforming%20School%20Discipline%20in%20New%20York%20State.pdf (last accessed Nov. 12, 2024).

 

[5] Id.

 

[6] Respondent argues in its memorandum of law that “[t]he suspension ... was appropriate regardless of [the student’s] cognitive ability” because her actions “severely harmed other students ....”  This does not represent the law in New York (Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383 [student’s “age and developmental level” is relevant in deciding whether a suspension is appropriate]; see generally Appeals of P.M. and K.K., 63 Ed Dept Rep, Decision No. 18,378; Appeal of B.A., 62 id., Decision No. 18,209; Appeal of N.V.D., 60 id., Decision No. 17,985).  Additionally, a video of the incident shows that the student engaged in this conduct in full view of adults and students on the playground; afterward, the children continued playing.

 

[7] HHS/USDOE joint guidance, supra note 3, at p. 6.

 

[8] Safe Schools Task Force, supra note 4, at p. 5.

 

[9] HHS/USDOE joint guidance, supra note 3, at p. 4.