Avoiding common errors in short-term suspensions |
On Board Online • April 28, 2025
By Shubh N. McTague
Staff Counsel
Out-of-school suspensions can come in the form of a short-term suspension, which is for five days or less, or a long-term suspension, which is more than five days. In both cases, school districts must follow the statutory procedures set forth in Education Law section 3214.
Generally, short-term suspensions are issued by the school building principal. Written notice must be provided in a parent's dominant language or mode of communication, which sets out the charged conduct and reason(s) for the proposed suspension as well as a right to request an immediate informal conference to present the student's version of events and question complaining witnesses.
Written notice generally must take place prior to the start of the suspension. However, a student may be suspended prior to receiving this notice if the student poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, provided that the notice and opportunity for a conference is completed as soon as reasonably practicable.
Additionally, the written notice must be provided by personal delivery, express mail delivery or an equivalent to ensure receipt within 24 hours of the decision to propose a suspension. Where possible notification must also be provided by telephone, but such oral communication is not a substitute for the written notice.
In an appeal, the commissioner of education can order expungement of a suspension from a student's record for a number of reasons. Below are issues that have been addressed by the commissioner.
Q. Can an assistant principal issue a short-term suspension?
A. No. For example, in Appeal of J.E., 57 Ed Dept Rep, Dec. No. 17,267 (2017), the commissioner found that the assistant principal was not authorized to issue a suspension and noted that there is no authority in the statute for the principal to delegate his/her authority to suspend a student to another individual.
Q. If a principal is unavailable, for example, due to sickness, can an "acting principal" suspend a student?
A. Yes. In Appeal of L.Z., 56 Ed Dept Rep, Dec. No. 16,982 (2016), the superintendent assigned the deputy superintendent to act as the building principal for the duration of the principal's medical absence. While the parents argued that the deputy did not have the authority to suspend the student, the commissioner disagreed, stating that because the deputy was the acting building principal, he possessed the authority to suspend the student.
Q. Must the written notice provide information on the right to an informal conference?
A. Yes. The commissioner has stated that the purpose of the written notice is to ensure that parents of, or persons in parental relation to a student, are made aware of their statutory rights, including the right to an informal conference to question the complaining witnesses in the presence of the principal. This procedure affords the principal the opportunity to decide whether their original decision to suspend was correct or should be modified. See Appeals of E.F., 64 Ed Dept Rep, Dec. No. 18,494 (2024). A notice lacking the statutorily required content is legally insufficient and can lead to expungement of the short-term suspension. See Appeal of a Student with a Disability, 60 Ed Dept Rep, Dec. No. 17,988 (2021).
Q. How much time must parents be given to request an opportunity to have an informal conference?
A. While the statute does not dictate that a certain amount of time must be allotted to parents to request a hearing, the amount provided must be reasonable. If not, the short-term suspension will likely be expunged. For example, in Appeal of L.D., 64 Ed Dept Rep, Dec. No. 18,502 (2024), the principal informed the parent on a Sunday that the student would not be able to attend school on Monday until the conference was held at 10:30 am. The commissioner expunged the short-term suspension, finding this was improper as the suspension began prior to the holding of the conference and there was no contention that the student's presence posed continuing danger to persons or property or an ongoing threat of disruption to the academic process. Similarly, in Appeals of E.F., 64 Ed Dept Rep, Dec. No. 18,494 (2024), the short-term suspension was expunged because the principal conducted the informal conference after the suspension had already begun. The commissioner stated that "[l]eaving zero school hours between delivery of the notice and the beginning of a suspension precludes the ability to request and convene an informal conference."
Q. Is providing written notice just prior to a meeting sufficient to give notice of a parent's right to an informal conference?
A. Probably not. In Appeal of D.C., 63 Ed Dept Rep, Dec. No. 18,393 (2024), the parent came to school to pick up the student after an incident and had a meeting with the principal. The parent was given written notice at the beginning of the meeting and a letter at the end of the meeting stating that an informal conference occurred. However, the commissioner found that this did not constitute an informal conference because the parent did not have an opportunity to review the contents of the letter prior to the meeting or have an opportunity to request that any complaining witnesses be present at the meeting.
Q. Can someone with a role not specified in the law, such as a hall principal, conduct the informal conference?
A. No, only those authorized by law can conduct the informal conference. For example, in Appeal of V.R., 43 Ed Dept 99 (2003), the commissioner held that it was improper to hold the informal conference with the hall principal and not the building principal.
Q. What constitutes "reasonably practicable" in providing written notice when a student has been found to be a continuing danger?
A. It can depend on the circumstances. In Appeal of K.W., 64 Ed Dept Rep, Dec. No. 18,520 (2024), the commissioner held that written notice provided one day after the parent was verbally informed of the student's short-term suspension after being found a continuing danger was reasonably practicable. On the other hand, in Appeal of D.D., 64 Ed Dept Rep, Dec. No. 18,545 (2025), the commissioner found that even though the student posed a continuing danger, providing notice on the third and fourth day of the suspension was not reasonably practicable.
Q. Can written notice be sent by regular mail when a student is found to be a continuing danger?
A. No. In Appeal of A.D., 63 Ed Dept Rep, Dec. No. 18,391 (2024) and Appeal of J.B.W., 62 Ed Dept Rep, Dec. No. 18,205 (2022), written notice was sent by regular mail the day after the suspension was issued. The commissioner held that even in circumstances where a student is found to be a continuing danger, districts cannot use regular mail as a method of delivery for the notice as it would not be considered "reasonably practicable."
Q. Must the written notice state that the student poses a continuing danger when that determination has been made?
A. Yes. A continuing danger determination must be in the written notice. For example, in Appeal of L.D., 64 Ed Dept Rep, Dec. No. 18,502 (2024) and Appeals of E.F., 64 Ed Dept Rep, Dec. No. 18,494 (2024), the students were suspended prior to the informal conference being held. The commissioner stated this was only allowable under the circumstance where the student posed a continuing danger and in neither case did the principal state in the notice of suspension that the student was a continuing danger. Thus, this argument cannot be utilized after the fact as a justification to begin the suspension prior to holding an informal conference if requested.
Q. What are acceptable methods of delivery for a written notice?
A. Notices can be delivered in person, by express mail or an equivalent so long as receipt is ensured within 24 hours of the decision to propose a suspension. For example, the commissioner has found that personal delivery of a short-term notice during an informal conference where complaining witnesses and the principal are present and the suspension has not yet begun is an acceptable form of written notice. See Appeal of a Student with a Disability, 60 Ed Dept Rep, Dec. No. 17,988 (2021).
Q. What are some examples regarding the delivery of the written notice that have been deemed insufficient?
A. The following have been deemed insufficient:
Oral notification of the suspension when the suspension begins prior to written notice being provided. See Appeal of M.P., 60 Ed Dept Rep, Dec. No. 17,937 (2020).
Notification by regular mail, even if followed up by oral notification on the same day. See Appeal of a Student with a Disability, 58 Ed Dept Rep, Dec. No. 17,616 (2019); Appeal of G.P., 50 Ed Dept Rep, Dec. No. 16,218 (2011).
Notice sent by registered mail return receipt requested. See Appeal of V.R., 43 Ed Dept 99 (2003).
While these issues discussed are not exhaustive of every error committed in short-term suspensions, school districts should work with their counsel to make sure they comply with the procedures set forth in law. Further information on student discipline, including the discipline of students with disabilities may be found in School Law, 40th Edition.