Each school year, the state commissioner of education determines that some school districts have failed to adhere to mandatory procedures regarding short-term out-of-school suspensions. A review of commissioner’s decisions reveals that school districts tend to repeat the same procedural mistakes, resulting in the nullification or expungement of otherwise justifiable penalties. This article will describe some common errors and recommend best practices for administrators.

Imposition of short-term suspensions is governed by Education Law section 3214, which provides that a building principal (or the board of education or superintendent of schools) has the authority to suspend a student for up to five school days, so long as the school district provides the parent and student with notice of the charged misconduct and an opportunity for an informal conference with the principal before a final decision is made regarding the proposed suspension.

[To suspend a student for more than five school days – commonly known as a “long-term suspension” – the district must provide the student must with a “fair hearing” before the superintendent of schools or a designee. This includes the right to be represented by counsel, the ability to present evidence and testimony, cross-examine witnesses, etc. Long-term suspensions are not addressed in this article.]

The three most common procedural errors made by administrators are: (1) failing to provide a written notice of a short-term suspension to a parent or guardian prior to imposition of the suspension; (2) imposing the suspension prior to an informal conference; and (3) the imposition of a suspension by an unauthorized administrator, such as an assistant principal.

1. Written notice must be provided to the parent prior to imposition of the suspension

Unless a school district determines that a student’s presence in school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process (see sidebar), the district must provide parents with proper notice prior to suspending a student.

School districts are required by law to “immediately notify the parents or the persons in parental relation in writing that the student may be suspended from school” (emphasis added).

The building principal’s first step should be to make a phone call to the parent/guardian, as school districts are obligated by Education Law section 3214 to notify parents or guardians by telephone, if possible. However, notification by telephone does not obviate the need to also provide written notice (see Commissioner’s Decision No. 16,814, 2015; full text is available at www.counsel.nysed. gov/Decisions/).

Even if the parent on the phone expresses a belief that the student engaged in misconduct, the district is still obligated to provide the parent with a written notification and inform the parent of his/ her right to request an immediate informal conference with the principal prior to the imposition of the suspension.

The written notice must be in the dominant language of the parent and include a description of the incident for which the suspension is proposed. The notice must also inform the parent that if he or she requests an informal conference, the student and the parent will be able to “present the pupil’s version of the event and to ask questions of the complaining witnesses.”

Complaining witnesses must have firsthand knowledge of the incident. The informal conference is not a due process hearing and the parent and student do not have the right to confront all witnesses.

Moreover, the commissioner has found a district’s interest in protecting the identity of a complaining student can outweigh the interest of the accused student in questioning an accuser. One such case involved a student accused of participating in a “Kick a Jew Day” at her high school, where the principal feared a lone witness would be subject to bullying and retribution (Decision 16,583, 2014). Be sure to consult with legal counsel before denying the accused student and the student’s parent with the opportunity to question complaining witnesses.

Notably, notice by regular or certified mail has been held to be insufficient (Decision 17,109, 2017). Parents may be provided with written notice by either personal delivery, express mail, or other equivalent means “reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension.”

It is also possible for the principal to call the parent, have the parent come to the school and hand-deliver a written notice of the suspension before it is imposed (Decision 16,888, 2016). However, in one such circumstance, the mere delivery of the notice at the informal conference was deemed insufficient, as the commissioner held that the principal must ensure that the parent reads the notice and/or that the parent is informed of the rights afforded to them at the informal conference (Decision 17,403, 2018).

2. A short-term suspension should not be imposed until after an informal conference (if held)

The purpose of an informal conference is to ensure the principal considers all relevant facts before making a final decision on whether to impose a short-term suspension. Some schools routinely schedule informal conferences even though the law states that they are necessary only when requested by the parent. Others inform parents about their right to participate in an informal conference and notify them that they should respond by a specified time and date to request a conference. Procedures may vary among schools, and you should check with your school attorney to review the best approach for your school district.

Unless the continuing danger/ongoing threat of disruption exception applies, it is impermissible to impose a suspension prior to the holding of the informal conference (if requested by the parent or held at the initiative of the school principal).

This is another common error – imposing a short-term suspension before the conclusion of the informal conference. The commissioner has expressly held that students cannot be prohibited from attending school prior to the holding of the informal conference (Decision 16,814, 2015).

In one case, the informal conference concerning a proposed one-day suspension was held three minutes after the start of first period. Immediately following the informal conference, the principal upheld the proposed penalty and suspended the student for the entire day. However, the commissioner ruled the penalty was improper since the penalty could not take effect until after the conclusion of the informal conference. Also noting a delay in delivering the notice, the commissioner rejected the district’s contention that holding the informal conference on the same day that the suspension was retroactively imposed was a “harmless error.” The commissioner found that the student was improperly suspended prior to the holding of the informal conference and reversed the suspension (Decision 16,234, 2011).

To avoid this procedural error, a best practice is to schedule an informal conference prior to the official start of the first day of the proposed suspension, or otherwise allow the student to attend school until the parent is informed that a suspension is possible and the informal conference convened. When a parent appeals a suspension to the commissioner, the State Education Department’s Office of Counsel scrutinizes the dates and specific contents of the various notices issued by the district. If an informal conference is held on the first effective day of the student’s suspension, that can be a red flag. We recommend that the text of the notice of imposition of suspension indicate, in some manner, that the student was not suspended prior to the informal conference.

3. A short-term suspension cannot be imposed by an assistant principal

In many high schools, an assistant principal is assigned to handle disciplinary incidents. But the law generally does not permit an assistant principal to independently perform several critical functions in the disciplinary process: (1) proposing a short-term suspension; (2) holding an informal conference without the principal; and (3) imposing a short-term suspension. Education Law section 3214 expressly states that only a building principal, a superintendent of schools or a board of education are authorized to impose short-term out-of-school suspensions. The commissioner has held that the law “does not authorize an assistant principal to suspend students, nor does it authorize the principal to delegate his authority to suspend[.]” (Decision 17,267, 2017).

Therefore, it is impermissible for an assistant principal to sign either the notice of proposed suspension or notice of imposition of suspension without the principal’s co-signature, and it is similarly improper for the assistant principal to hold an informal conference without the principal present.

The only time that an assistant principal (or other school employee) has the authority to suspend a student is when he or she is serving in the capacity of acting principal (Decision 16,982, 2016). The commissioner has held that where the superintendent of schools has designated an acting principal, that individual may suspend students.

Accordingly, a best practice is to ensure that the principal (or acting principal) is present at the informal conference and that his or her signature is on the suspension notices. Moreover, in the case of an acting principal, it is a best practice to ensure that there is written designation for the employee to serve as acting principal. Such designation could be a communication from the superintendent of schools or a policy or resolution adopted by the board of education.

The procedural errors described in this article are easily avoided. We recommend that all school districts periodically review their disciplinary procedures with their school district attorney to ensure compliance with the law and consider training for the administrators involved in short-term suspensions.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Eric Levine of Guercio & Guercio. LLP.