Be Specific to Keep Suspensions Valid, Says Interim Commissioner

The Interim Commissioner of Education has been busy issuing decisions in August and September addressing the sufficiency of charges for student discipline hearings. Particularly, in two cases of note, suspensions were annulled and expunged due to a finding that the charges levied by the District were insufficient.

By way of review, to suspend a student for more than 5 days, a hearing pursuant to New York Education Law § 3214 must be held within 5 days of the first day of suspension. Prior to the hearing, the student and family must be provided with a notice of hearing that apprises them of the student’s rights in the hearing and sets forth the allegations the District will attempt to prove by competent and substantial evidence in the hearing. Generally, the charges in a student discipline proceeding must be specific enough to provide the student and family with information sufficient to defend the allegations; as stated by the Commissioner in prior decisions the charges must be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing”. Appeal of N.R., Decision 17,913 (August 2020).

In a case decided in August, and particularly relevant due to student computer use during the pandemic, a student was charged with conducting searches for inappropriate topics on his school issued computer. Appeal of N.R., Decision No. 17,913. The notice of hearing identified 13 alleged inappropriate searches. At the hearing, the student admitted to the searches, but testified that they were not inappropriate and offered an appropriate explanation for each search identified on the notice. The hearing officer recommended that the student be found guilty based upon his admission that he conducted the searches and made a specific finding concerning one search and recommended he be found guilty of violating the district’s Chromebook student user agreement. The Superintendent adopted the hearing officer’s recommendation and found the student “pleaded guilty”, but later the Superintendent issued a revised determination letter stating the student was found guilty based upon the hearing testimony and record and Superintendent’s decision was upheld by the Board.

The Interim Commissioner ordered that the District annul the suspension and expunge the student’s record on the basis that the District failed to provide any evidence contrary to the student’s explanation for each search. Because of that failure, the Commissioner found there was not competent and substantial evidence that the student’s actions, by conducting the searches, endangered the safety, morals, health or welfare of others. In coming to this conclusion, the Interim Commissioner points out that no one was aware of the student’s searches when they occurred, and thus the searches “would not foreseeably cause any disruption to school operations or activities, was not conduct for which the district could properly suspend the student under Education Law § 3214(3)(a)”. The Interim Commissioner also noted that the hearing officer’s determination that the student violated the District’s Chromebook user agreement would not have been upheld due to the fact that the student was not charged with that violation in the hearing notice.

In a case decided in September, the Interim Commissioner again weighed in on the sufficiency of a notice of hearing and found it lacking. In Appeal of T.F., Decision No. 17,916 (September 2020), the Interim Commissioner annulled and expunged a student’s long-term suspension due to insufficient notice of charges in the notice of hearing. The notice of hearing identified the charges against the student as: “Inappropriate Conduct, pattern of inappropriate conduct and comments”. The hearing notice did not reference any specific incidents. The student was found guilty of 1) inappropriate conduct; 2) pattern of inappropriate conduct and comments; and 3) disorderly conduct. The Commissioner ruled that there was no notice of a charge of disorderly conduct, and as such, that charge must be dismissed. The Commissioner made it clear that “a district must be held to the language of the charges it chooses to pursue against a student”. And, that a hearing notice must give a recipient “enough information to prepare an effective defense but need not particularize every single charge against a student”. Regarding the first and second charges, the Commissioner again determined that notice was insufficient in that it provided “no information as to the dates, number, content, or context of any such conduct or comments”.

Both decisions demonstrate a more conservative trend from the Interim Commissioner requiring sufficient detail in the charges in a notice of hearing for a long-term suspension. At the least, the notice should contain the date(s) of the conduct at issue and the actual conduct itself must be identified. In this time of remote learning, the notice should specify the location of the conduct as well (the cafeteria, the hallway, or during a remote learning session), and if inappropriate use is a charge, the hearing notice should include violations of any user agreements or acceptable use agreements the District intends to use at the hearing.

If you have questions or would like training on student discipline hearings, including hearing officer training, or review and revision of your suspension letters and hearing notice forms, please contact our office.