Each school year, the commissioner of education finds that school districts have failed to provide due process or made other legal errors in connection with out-of-school suspensions of students lasting more than five days. These are called “long-term” suspensions, and the due process method that school districts must use is commonly termed a “superintendent’s suspension hearing.”

This article will describe common errors in long-term student suspensions and recommend best practices for school districts.

[Editor’s Note: For guidance on suspensions of five days or less, see “How to avoid common errors in handling short-term student suspensions,” in the August 13, 2018 issue of On Board or send an email to editor@ nyssba.org for a PDF copy.]

Imposition of long-term suspensions is governed by Education Law section 3214, which provides that no student shall be suspended in excess of fi ve school days unless such student has had an opportunity for a fair hearing before the superintendent of schools or a designee, upon reasonable notice. At the meeting, the student may be represented by counsel, has the right to cross-examine witnesses and the right to present witnesses and other evidence.

Three common procedural errors made by school districts are: (1) failing to provide notice of the hearing in a timely manner; (2) not being specific enough in the notice of charges to inform the student of the incident which led to the hearing; and (3) submitting witness statements instead of live testimony at a hearing.

Timely notice of charges
A student is entitled to “reasonable notice” of the charges against them, but the law does not specify what constitutes reasonable notice. In many appeals, the commissioner has held that three days’ notice of a hearing is sufficient and that one day’s notice is not sufficient. But do not regard these as hard and fast rules; in Bd. of Educ. of Monticello Cent. Sch. Dist. v. Comm’r of Educ., (1997), the state’s highest court, the Court of Appeals, stated, “What constitutes ‘reasonable notice’ obviously varies with the circumstances of each case.”

For example, in Appeal of a Student with a Disability, Decision No. 17,273, the commissioner found that a school district failed to provide reasonable notice where the parent did not open an e-mail sent by the school with the notice attached until one-and-a-half days before the hearing. (The parent did not receive a notice sent through U.S. mail until after the hearing was concluded, despite it being mailed three days prior to the hearing.)

Notably, the commissioner has held that school districts can meet the reasonable notice requirement by verbally informing parents of when the long-term suspension hearing will be held in a timely manner, and then following-up with a written notice. For example, in Appeal of K.M., Decision No. 16,178, a parent alleged that the school district failed to provide reasonable notice of a hearing scheduled for the morning of May 19 when the written notice of the hearing was not delivered until  the evening of May 17. However, the superintendent’s secretary had called the parent on May 14 to inform her that: (1) the hearing would be held the following week; and (2) an official notice detailing the hearing would be sent on May 17. Based on that call, the commissioner ruled that the parent had received adequate notice for the purposes of Education Law section 3214.

Recommendation: Best practice is to ensure that a parent and student have received written notice of the date of the hearing at least three days prior to the hearing date. Hand delivering the notice to the student’s home three days before the hearing is likely to be viewed by the commissioner as providing timely receipt of the notice. If it is not feasible to provide written notice at least three days prior, school personnel should call and/or e-mail parents to advise them of the hearing date within that time frame, keep an internal record of any such calls or e-mails, and then deliver the hearing notice as soon as practicable, preferably through hand delivery or another form of confirmed delivery.

Sufficiency of charges
A school district is required to provide written notice of the charges against a student before a superintendent’s suspension hearing is held. The Court of Appeals has held that charges of misconduct against students in a long-term suspension hearing do not need to be as specific as a criminal indictment. Such disciplinary charges “need only 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 . . . . [in order to give students] a fair opportunity to tell their side of the story and rebut the evidence against them.”

Therefore, at a minimum, notice of such charges should contain the following information: (a) the time, date, and location of the hearing; (b) the student’s right to be represented by counsel, present evidence, and to confront and cross-examine witnesses; and (c) a description of the activities or incidents which gave rise to the proceeding and will form the basis for the hearing.

The commissioner has held that a school district is not required to “particularize every single charge against a student[.]” Moreover, while the charges against a student must be based on violations of the school district’s code of conduct, there is no requirement that the charges cite a specific provision of the code. But the charges should indicate the date the incidents are alleged to have occurred, even if it is qualified by “on or about.” Nevertheless, there is no requirement that the charges identify the time or location where the misconduct is alleged to have occurred.

Additionally, it should be noted that once a student is charged with certain violations of the code of conduct, a school district is bound by the language of the charge in determining the student’s guilt and cannot find the student guilty of charges not contained in the notice. For example, in Appeal of a Student with a Disability, Decision No. 17,600, a student was charged with “use of an illegal controlled substance while on school grounds.” While the hearing officer found that the student did not use any illegal controlled substances on school property, the hearing officer nevertheless found him guilty because the student admitted possessing a vape pen. On appeal, the commissioner overturned the suspension, holding that since “use of an illegal controlled substance” and possession of a vape pen are “qualitatively different,” the district was bound by the language of the charge.

Recommendation: A best practice in drafting a notice of charges is to describe all of the alleged activities or incidents that prompted the hearing, including the approximate date they occured. The notice should also explain the student’s due process rights, including the right to counsel, and provide information regarding the time, date and location of the hearing.

Witness testimony at the hearing
It is well-settled that in long-term suspension hearings, hearsay testimony is permitted, and “hearsay alone may constitute competent and substantial evidence in a student discipline proceeding[.]” However, because the law requires students to be permitted to confront and cross-examine witnesses against them, it is generally impermissible for a school district to introduce written statements of witnesses in lieu of live testimony because it deprives students of such rights. Notably, the introduction of such impermissible written statements can result in the overturning of a suspension where it was the only substantial and competent evidence relied on by the hearing officer.

Despite the general prohibition against the introduction of witness statements in lieu of live testimony, both the commissioner and the courts have held that in certain circumstances, “a school district’s interest in protecting the identity of student witnesses against possible retaliation from a potentially violent student may overcome a student’s right to question witnesses against him or her[.]” For example, in Appeal of a Student with a Disability, Decision No. 17,297, the commissioner found that the school district’s interest in protecting the identity of student witnesses overcame the student’s due process rights where the student was charged with inflicting injuries severe enough for the victim to be admitted to the emergency room. The associate principal testified at the hearing that the student witnesses did not want to testify because they feared the student would physically retaliate against them. See also the U.S. Court of Appeals for the Second Circuit’s decision in D.F. v. Bd. of Educ. of Syosett Cent. Sch. Dist. (2006), which involved a student, then 10, who received a long-term suspension of 30 days after he wrote a fictional story about a boy with the same first name going on a killing spree at school.

The commissioner has held that in order to use witness statements in lieu of live testimony, a rationale for doing so must be asserted at the hearing. But, if the school district otherwise reveals the identities of student witnesses’ identities at the hearing, the rationale has been undercut.

Settlement agreements
In many school districts, parents and students agree to settle a suspension hearing by waiving the student’s rights under Education Law section 3214, including the right to a hearing, in exchange for a set penalty. While the commissioner has held that such settlement agreements are permissible, parents and students must enter into same voluntarily, knowingly and intelligently. In order for such settlement to be valid, the school district must provide the student and parent with a written document that clearly and concisely states all of the rights to be waived, as well as the consequences of such waiver and the terms of the settlement. The settlement agreement must be in writing and signed by all parties.

Consult with your school district attorney to ensure satisfaction of these requirements. 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