Importance of Giving Notice of Right to Informal Conference with Principal BEFORE Short-Term Suspension, With Limited Exception

A principal’s suspension of a student for five days or less requires notice and the opportunity for an informal conference with the principal. This must occur prior to the suspension, “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”. If the pupil’s presence poses that continuing danger or disruption, the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable. When faced with a threat, many administrators have determined that it is prudent to immediately suspend students. Principals have relied on either continuing danger or threat of disruption as grounds for immediate suspension. However, a decision by the Commissioner of Education in May of this year indicates that principals may now have a higher burden of justifying immediate suspension.

The decision involved a threat made by a student which was initially cause for concern, but which was later determined not to be a credible threat of actual harm. The school district reassured the community about this, not anticipating that it would have any effect on related disciplinary action against the student. In response to the parent’s appeal, the district argued that the principal had deemed the student a continuing danger or ongoing threat of disruption. However, the principal failed to include this determination in the notice of suspension. The Commissioner also stated that the district “cannot claim that the student’s presence at school posed a continuing danger or threat of disruption after it had informed the district’s residents in an email that there was no credible threat present at the school.” She determined that the exception to the requirement of notice and an opportunity for an informal conference BEFORE a suspension did not apply. Therefore, the Commissioner ordered the district to annul and expunge from the student’s record all references to the suspension.

This decision should inform districts’ procedure when addressing threats made by students. It is a reminder that, if the principal has determined that the student must be immediately removed from school because of a continuing danger or threat or disruption, it is crucial that the notice of suspension include this determination. It also indicates that, in future appeals, the Commissioner may give less deference to principals’ determinations of the need for immediate suspensions.

The standard for immediate suspension prior to informal conference contains two separate parts: (1) continuing danger to persons or property OR (2) ongoing threat of disruption to the academic process. The Commissioner’s decision suggests that a later finding that a threat is not credible may eliminate the first basis for immediate suspension. However, it is possible that if, based on what the principal knows at the time of the suspension, the student poses a danger, and if the principal includes a statement about continuing danger in the notice of suspension, such an immediate suspension may withstand an appeal. Also, if the principal has grounds to believe that the second basis for an immediate suspension exists, the notice of suspension should specifically say that there is an ongoing threat of disruption to the academic process.

If the police quickly determine that there is no credible threat, then the most prudent action may be for the principal to provide the notice and informal conference before imposing an out-of-school suspension. One option may be to place the student in in-school suspension pending the completion of this process.

The above are general observations. We stand ready to provide advice regarding how to respond to particular situations, and regarding the language of notices of suspensions.