A Primer on Student Suspension Hearings in New York Public Schools
By: Anthony J. Fasano, Esq.
In New York, the Education Law provides that no student may be suspended from public school attendance in excess of five days without due process. To satisfy this due process requirement, school districts must conduct a student suspension hearing, also commonly referred to as a student disciplinary hearing or a § 3214 hearing, and reasonable notice of that hearing must be provided to the student and the student's parents or guardians. Although administrative at heart, these hearings often take on many elements of an actual trial and are adversarial in nature.
At these hearings, students and parents may be represented by an attorney or other advocate. The school district's attorney often attends on behalf of the school district to present the school district's case. These hearings are held before the superintendent of schools or a hearing officer designated by the superintendent or board of education. These administrative hearings provide an excellent opportunity for new lawyers to gain practical experience, both in representation and in adversarial proceedings.
The focus of this Article is on the hearing requirements for general education students. In order to suspend a student with a disability, different procedures are required and are out outside the scope of this Article.
Prior to the hearing itself, students and their parents are entitled to reasonable notice of the hearing. The Commissioner of Education has delineated between the form of the notice and the content of the notice. Both aspects are required in order to ensure that the reasonable notice element of due process is satisfied.
Parents and students are entitled to written notification of the charges against the student written in the dominant language of the parent. The written notification must be received, usually, three days prior to the hearing, although two days has been held sufficient where an oral warning preceded the written notice by several days (see e.g., Appeal of K.M., Decision No. 16,178 ).
A school building principal has the authority to suspend a student up to five days with just an opportunity for an informal conference. Where deemed appropriate, the principal refers the matter to the superintendent for further disciplinary action. In practice, a student is typically suspended up to the five-day maximum and the hearing is scheduled toward the latter portion of the five-day term. Most often, the school district is cognizant of whether the student's misconduct warrants a suspension in excess of five days at the same time it imposes the initial five-day suspension; thus, the written notice of the hearing is received by the parents and student toward the very outset of the five-day suspension, satisfying the timing requirement of the written notice. Notably, school districts may cure an untimely notice by rescheduling the hearing to a new date and providing sufficient notice for that date. The school district, however, must readmit the student at the end of the five-day suspension until the hearing is convened.
In regard to the content requirement, due process requires that the student and the person in parental relation to the student be sufficiently apprised of the charges against the student so that an adequate defense can be prepared. As the Court of Appeals has stated, the 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' " (Bd. of Educ. of Monticello Cent. Sch. Dist. v. Commissioner of Educ., 91 NY2d 133, 139-40 ). Simply stating that the student violated school policy in conclusory fashion or repeating elements of the New York Education Law are insufficient to meet this threshold. Further, the notice must identify the time, date, and place of the hearing, as well as the "right to be represented by counsel, to present evidence, and to confront and cross-examine witnesses" (id.).
Conduct of the Hearing
A student suspension hearing is divided into two portions: (1) the determination of guilt or innocence phase, and (2) the penalty phase. At the hearing, one of several people will preside over the hearing as the hearing officer: (1) the superintendent of schools, (2) a designee of the superintendent of schools, (3) the school district's attorney, or (4) an independent hearing officer (including attorneys with no affiliation with the school district). Where the hearing officer is one other than the superintendent, the hearing officer merely makes findings of fact and recommends a level of discipline to the superintendent. The superintendent is not bound by the report and the superintendent may accept all or any part of the hearing officer's findings.
The school district has the burden of proving the charges of misconduct by competent and substantial evidence. As with criminal matters, the student is presumed to be innocent until proven guilty. The student has the right but not the obligation to remain silent, and the student will waive that right if the student testifies on his/her own behalf.
Because of the administrative nature of these hearings, the formal rules of evidence do not apply. Hearsay is admissible in these proceedings and may constitute substantial evidence of the charges in and of itself. Further, evidence that has been excluded in a separate proceeding, e.g., a criminal case, may be introduced into evidence in a student suspension hearing. As a general rule, the introduction of written statements without presenting the author as a witness at the hearing deprives the student of the right to confront and cross-examine witnesses, and has been found to be grounds for overturning a disciplinary penalty.
The school district is not required to cooperate with a demand for discovery prior to the hearing, but must allow for an adjournment for the student to prepare an adequate defense in regard to newly presented evidence. As the student will remain suspended when an adjournment is requested by one on the student's behalf, there is often no rush on the school district's part to reschedule the hearing. In practice, when the student is represented by an attorney, providing reasonable discovery prior to the hearing will often help facilitate an amicable settlement agreement at the hearing.
As with the school district's case in chief, the student is permitted to put on his/her own defense at the hearing. This includes, but is not limited to, the introduction of physical evidence, live testimony, and testimony from the student, if chosen. Proper foundations for evidence and testimony should be laid, and proper questioning of the witnesses should be conducted. Although the technical rules of evidence do not apply, this does not mean that the hearing officer will simply allow every piece of evidence presented into the record. Moreover, following the rules of evidence and laying a proper foundation will only add to the reliability of the evidence and/or testimony that you are presenting. To further buttress the student's case, the hearing officer, upon request, may issue subpoenas for witnesses to testify at the hearing.
Once the student's case is finished, the hearing officer will make a determination as to whether the charges against the student are sustained. If the charges are not sustained, that will conclude the hearing. The charges against the student will be dismissed, the student will immediately be allowed to return to school, and the record of the student's discipline must be expunged. Alternatively, if the charges are sustained, the hearing proceeds into the penalty phase.
In the penalty phase, the student and parents will be given an opportunity to review the anecdotal records of the student. Once the review is complete, the records will be put into evidence for the hearing officer's use in determining the appropriate penalty. This phase of the hearing is the appropriate time for testimony not generally relevant to the guilt or innocence phase. For example, the parents of the student often testify to the student's character and how he/she has begun to make amends for the charged misconduct. This is also where students will bring in members of the community, e.g. pastor, coach, etc, who will testify favorably about the student.
After the hearing is concluded, the hearing officer (if not the superintendent) will make his/her recommendation to the superintendent of schools as to the facts and as to the appropriate penalty. The superintendent then must notify the parents and student of the final decision and penalty prior to the end of the student's five-day suspension. The student may not be suspended for more than five days unless a final decision has been rendered by the superintendent. Customarily, the superintendent makes his/her decision the same day or the following day as the hearing officer's recommendation.
Generally, an appeal from a student suspension hearing must first be brought to the local board of education. The time to commence such an appeal varies from district to district, but is generally around thirty calendar days. The local board of education's policy regarding appeals should be reviewed prior to the actual hearing to ensure compliance with the applicable time period. Failure to properly comply with the local board of education's policy may warrant dismissal of your appeal based on procedural grounds and/or the failure to exhaust administrative remedies.
If the board of education upholds the superintendent's determination, the decision may then be appealed to the Commissioner of Education. The appeal must be brought within thirty days from the board of education's determination, or if the board of education does not hear appeals, then thirty days from the date of the superintendent's decision. These timelines are strictly construed by the Commissioner.
In addition to appealing the decision of the superintendent, the appeal should also seek the expungement of the student's records. Often, the Commissioner does not decide on the merits of an appeal until after the student has served the underlying suspension. This mandates that an appeal be dismissed as moot. However, where the petitioners to an appeal also seek expungement of the student's records, the Commissioner will analyze the validity of the underlying suspension.
On appeal, the "petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief" (Appeal of D.M., Decision No. 16,632 ). With respect to the findings of facts by the hearing officer, the Commissioner will not substitute his judgment for that of the hearing officer unless there is clear and convincing evidence that the determination is contrary to the record. This is a high burden. The two most often reasons for sustaining an appeal is the failure to provide due process and imposing too severe a penalty. Minor mistakes that occurred during the process of the hearing rarely warrant overturning the decision of the superintendent.
This Article was written to provide a general outline of what can be expected at a student suspension hearing and what a new lawyer can expect at such a proceeding. This type of proceeding offers an excellent opportunity for new lawyers to become familiar with an adversarial proceeding early on in their careers. More information can be found about student suspension hearings and the applicable appeal requirements at the New York State Education Department's website at http://www.counsel.nysed.gov/appeals.