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Disciplining students is one of the more difficult – and legally nuanced – responsibilities of school administrators and boards of education. Suspensions and other penalties may be appealed to the commissioner of education, and the commissioner’s review now includes a new consideration – whether being a victim of bullying was a factor in the circumstances leading to the suspension. This article will review the basics of student discipline and how the process has been affected by the Dignity for All Students Act (DASA).

Discipline 101
The first step in student discipline is having a well-drafted code of conduct. [Editor’s Note: Assistance in drafting and maintaining codes of conduct is available from NYSSBA’s Policy Services Department.] A school district’s code of conduct should clearly describe what conduct is prohibited and a range of disciplinary penalties that may be imposed in the event of a violation.

Regulations of the commissioner of education require that the code of conduct be publicized, explained to all students and provided to all parents in writing on an annual basis. A school district is obligated to comply with its own policies and procedures, including provisions that go beyond the requirements of the Education Law and the state regulations.

In disciplinary cases involving a suspension of five days or less (sometimes referred to as a Principal’s Suspension), the student and parent(s)/guardian(s) must receive written notice of the proposed suspension. The notice must give the reason for the proposed suspension and explain the family’s right to request an informal conference on the matter. The notice and opportunity for the informal conference must take place before the student’s suspension unless the student’s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process.

A notice for a suspension of more than five days (sometimes referred to as a Superintendent’s Suspension) requires an additional notification, along with the specific charges against the student.

Failure to strictly adhere to due process requirements results in the commissioner of education issuing a directive to expunge the suspension from the student’s record. For example, in Appeal of P.B., on behalf of her daughter M.B., a student was suspended for four days for an incident involving alcohol. Although the principal contacted the parent regarding the suspension, the notice of the parent’s right to an informal conference was not provided in advance of the suspension. Also, the district failed to personally deliver the notice or use a method of delivery reasonably calculated to ensure receipt within 24 hours of the decision to propose a suspension. The commissioner ordered the suspension expunged because the district failed to provide the parent(s)/guardian(s) with a meaningful opportunity to attend the informal conference and speak to the witnesses prior to the imposition of the suspension.

In order to avoid having a suspension overturned on a technicality, school officials should review their district’s code of conduct before imposing any form of suspension. They also should be familiar with the proper steps to take before and after a suspension is imposed, including notice requirements. These are explained in Charter 23 of the 33rd edition of School Law, produced by NYSSBA and the New York State Bar Association and published by LexisNexis.

Penalties and appeals
If a student is suspended for five days or less, parents and guardians may appeal the suspension directly to the commissioner of education unless a district policy requires such an appeal to go to the school board first. Under state law, appeals of so-called long term suspensions lasting more than five days go before the board of education and can be further appealed to the commissioner.

When the commissioner of education hears appeals of student disciplinary penalties, the test applied is whether the penalty is so excessive as to warrant substituting of the commissioner’s judgment for that of the school district.

Districts must be prepared to defend disciplinary penalties as proportionate to the severity of the offenses. Discipline should be progressive, meaning that a first violation by a student typically will merit a lighter penalty (e.g. oral warning, written warning, probation, detention, suspension from transportation, etc.)  than subsequent violations, depending on the severity of the offense and other circumstances.

Although it is more common for the commissioner to overturn a suspension for procedural defects than reduce a penalty for being excessive, an example of a case in which the commissioner substituted his judgment for that of a school board was Appeal of T.A. on behalf of her son D.A. In that case, the commissioner ruled that a one-year suspension for use of marijuana on school grounds was excessive. The commissioner noted that the student had no prior discipline for any serious misconduct, had not been in any violent incidents and only had one disciplinary incident for which he served a half-day of in-school suspension for not reporting to class.

However, in another recent decision, Appeal of A.W., the commissioner declined to substitute his judgment regarding the permanent suspension of a student from a BOCES program after he had an inappropriate conversation regarding a female student.

One way to support a decision to impose a severe penalty, such as a year-long suspension, is to be able to demonstrate that the student has been subject to progressive discipline in the past. Prior to imposing a penalty, the student’s anecdotal record should be reviewed to determine whether the student has previously engaged in similar conduct. The commissioner also tends to focus on whether students have previously engaged in violent conduct when determining whether a severe penalty is appropriate.

Finally, the commissioner may look at whether the penalty imposed is consistent with penalties imposed for other similar offenses. Therefore, evidence of consistently imposing similar penalties for similar offenses may be used to justify a penalty in an appeal before the commissioner (see Appeal of K.M. on behalf of her daughter E.W.).

Moreover, a school district may be statutorily required to impose a particularly severe punishment, such as a one-year suspension for a student who brings a firearm to school, unless the superintendent determines it is appropriate to modify such penalty.

DASA protection of bullying victims can affect discipline
A newer aspect of student discipline involves the proper method of applying the requirements of the Dignity for All Students Act. A student’s claim of being the victim of bullying may be considered as part of a commissioner’s decision regarding the appropriateness of a suspension.

For example, in the 2013 case of Appeal of A.V. and S.A.-V., on behalf of their son Y.V., the student had complained of being bullied and the district took certain measures to address the bullying, including assigning a teacher’s aide as a monitor. What the monitor witnessed led school officials to suspend the student. According to the district, the student made a number of false accusations, including that the monitor caused him to fall down a set of stairs, that one teacher threatened to beat him up and another threw a book at him. He was also insubordinate, avoided the monitor and ignored a directive to put away his cellphone. These and other infractions resulted in a one-day suspension and a five-day suspension.

The commissioner noted that Y.V.’s status as a victim of bullying did not negate his responsibility to comply with instructions and directives. Accordingly, the allegations that he had been the victim of bullying were not sufficient to completely overturn his suspensions. However, the commissioner directed the school district to expunge certain charges after considering evidence presented by the student.

It is clear that the commissioner took the student’s contention that he was a victim of bullying into account and analyzed whether it was relevant to each disciplinary charge. It behooves districts to do the same in their disciplinary deliberations.

In particular, school officials should consider whether they have appropriately responded to a notification of bullying – even if the notification is made for the first time when the student is in the process of being disciplined.

Appropriate responses address the concerns of the bullied student while curbing the inappropriate behaviors of the bully. By complying with its obligations under DASA, a district will be developing the support necessary to justify discipline imposed on the bullied student for future misbehavior.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Patricia A. Unz and Christopher W. Shishko of Guercio & Guercio, LLP.