The Challenge of Affording Disciplinary Due Process While Assessing Student Threats

It is an unfortunate reality that students engage in behaviors that are — or might appear to be — threats to others in the school community. Schools must investigate and respond to real or perceived threats immediately. But in their haste, schools must not lose sight of their obligation to provide students with due process before imposing student discipline.

While the student disciplinary process provided in the Education Law is well known, its application can be challenging under stressful circumstances.

Take for example a photograph of a student (“Student A”) holding what appears to be a rifle. The photo is shared with other students in a group chat setting outside of school. One of the students shows the photo to a parent. The parent is concerned and notifies the school.

The school is unable to make any threat assessment before the next school day, and in the interest of safety decides to suspend Student A immediately. The principal calls Student A and his parent and explains that Student A is suspended pending the investigation because his presence at school poses a continuing danger.

Notice of Proposed 5-day Suspension; Exceptions for Continuing Danger, Ongoing Disruption.

Under Education Law § 3214, a School must provide notice of a proposed short-term suspension to the student along with the reason for the suspension. The School must provide the student and his parent with written notice advising of the proposed suspension and the reasons for it, and advising them of their right to request an immediate informal conference with the principal, at which the student and parent can present the student’s version of events and ask questions of complaining witnesses.

Written notice of the proposed suspension and the opportunity for an informal conference must be given before the suspension commences. A principal may not, in effect, tell the student that he is suspended immediately, but that he should feel free to set up a meeting with the principal to discuss it. That would circumvent the purpose of the requirement, which is to provide the student and parent with an opportunity to tell their side of the story and to question others about theirs before any discipline is imposed. This is the essence of due process.

Education Law § 3214 recognizes, however, that the required notice and opportunity for an informal conference may not be able to begiven where the presence of the student at the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process. Under those circumstances, the student may be suspended immediately but written notice of the suspension and opportunity for an informal conference still must take place as soon as is reasonably practicable.

Returning to our example, the school conducted a threat assessment of Student A, who turned out in the photo to have been holding a B.B. gun (which he surrendered). The school determined that Student A did not pose a threat, and Student A returned to class the following day.

In the meantime, classmate Student B circulated the photo of Student A with the gun, causing widespread concern among other students and their parents. Assessing that the circulation of the photo created an ongoing threat of disruption to the academic process, the principal contacted Student B and his parents by telephone and directed them to appear in her office later the following morning. At the meeting, the principal issued a five-day suspension to Student B, which Student B and his parent challenged.

The facts in our example are based on a recent Commissioner’s Decision. In that case, Student B’s suspension was expunged on two grounds.

First, the principal failed to provide written notice of the proposed suspension to Student B or his parents. This was fatal, notwithstanding the oral notification given to them by telephone and the prompt informal conference held in the principal’s office the following day. The Commissioner found that while notice of any proposed suspension can and should also be given by telephone where possible, that telephone notice is not a substitute for the required written notice.

Second, the Commissioner ruled that Student B’s suspension had to be expunged because no evidence was submitted to establish that Student B’s presence at school would create a continuing danger or ongoing threat of disruption. The Commissioner held that it is “well established that a continuing danger determination must be set forth in the notice of suspension.”

Lessons Learned.

What can we learn from this recent decision? That the urgency of a situation warranting suspension does not excuse compliance with the requirements of Education Law § 3214.

In continuing danger or threat of disruption situations, the school should perform its threat assessment and carry out its obligations under Education Law § 3214 in parallel, but simultaneously. Failure to do so may violate the student’s due process rights and thereby threaten the validity of any discipline imposed.