School Board Policies
• Alcohol and drug testing of bus drivers
• Prohibition of smoking on school grounds
• Drug-free workplace
• Public conduct on school property
• Child abuse prevention and reporting procedures
• Student records
• Student conduct, discipline and suspensions
• Special education
• Access to public records
• Non discrimination on the basis of sex
• Student suspension for possession of firearms
• Staff and student substance abuse
• Federal and New York State Law prohibit discrimination against teachers with a disability provided the disability does not interfere with the teacher’s ability to perform teaching duties.
• Federal and New York State Law prohibits discrimination in employment because of race, color, sex, national origin, religion, creed, disability, sex, marital status, age, sexual orientation.
• Teacher’s daily teaching load not to exceed five perioids daily or more than 150 students daily without a justification to deviate (See 8 NYCRR sec. 100.2 (i)). (Only in unique and compelling circumstances)
Freedom of Expression
The U.S. Supreme Court has ruled that school districts may discipline and even dismiss employees for speech that is not a matter of public concern or which is disruptive. Each case will depend on its own unique facts and circumstances.
A teacher is entitled to the constitutional protection of freedom of speech and expression which can only be suppressed to avoid “substantial disruption or material interference with school activities to maintain order and discipline in the operation of its schools”. Appeal of Board of Education of Wappingers Central School Distrcit, 34 Educ. Dept. Rep. 323 (1994). (Decision by N.Y. State Commissioner of Education).
A teacher’s academic freedom should be protected where the material that the teacher uses is relevant, has educational value and is suitable to the age and maturity of the students being taught. (Malverne UFSD v. Sobol, 181 A.D. 2d 371 (1992)
Corporal Punishment/Physical Force
Corporal punishment in New York State public schools is unlawful and not allowed; however, physical force may be allowed where reasonable alternatives cannot be utilized to:
(1)Protect oneself, another student, teacher or any person(s) from physical injury.
(2)Protect the property of the school or others;
(3)Restrain or remove a student whose behavior interferes with the orderly exercise and performance of school district functions, powers and duties, if that student has refused to refrain from further disruptive acts (8 NYCRR sec. 19.5; 100.2 (1), (3)).
Payment Of Attorney Fees For School District Personnel
The Board of Education of a School District in the State of New York shall provide an attorney or attorneys for, and pay such attorney’s fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or criminal action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his/her duties within the scope of his/her employment or authorized volunteer duties. (N.Y. Education Law, Sec. 3028).
When a teacher attains tenure, the teacher has earned the right to hold his or her respective position during good behavior and efficient and competent service, and shall not be removed except for any of the following causes, after a hearing as provided by section 3020-a of the New York Education Law: (a) insubordination, immoral character or conduct unbecoming a teacher; (b) inefficiency, incompetency, physical or mental disability, or neglect of duty; (c) failure to maintain certification as required by the Education Law and by the regulations of the Commissioner of Education.
Each person who is not to be recommended for appointment on tenure, shall be so notified by the superintendent of schools in writing not later than sixty days immediately preceding the expiration of his or her probationary period. (NY Education Law, sec. 3012).
Under New York Law, it is possible for a teacher to obtain tenure in two ways: (1) By approval of the Board of Education based upon the school district superintendent’s recommendation; (2) Tenure by estoppel in which the Board of Education is “estopped” from dismissing a teacher because of the Board’s failure to act on the recommendation the superintendent as required by Education Law sec. 3012 to grant or deny tenure, where the teacher continues to teach beyond the expiration of the probationary term, with the knowledge and consent of the Board of Education and continues to be paid for teaching services. (La Barr v. Board of Ed. of Union Free School Dist. No. 1, Town of Hempstead, 425.F.Supp. 219 (1977); Walters v. Amityville Union Free School Dist., 251 A.D.2d 590 (1998).
Review Of Denial Of Teacher Tenure
If all legally required procedural rights have been complied with by the school district, the denial of tenure will be respected by the judiciary unless the denial of tenure is wholly arbitrary or capricious or motivated by unconstitutional or statutorily prohibited reasons. Yanoff v. Commissioner of Ed., 66 A.D. 2d 919 (1978); appeal denied 47 N.Y. 2d 711; Federico v. Board of Ed. of Public Schools of Tarrytowns, 955 F. Supp. 194 (1997).
Consult With A Lawyer
School District Records
The Education Law and the Public Officers Law require that school district records must be available for inspection and copying at all reasonable times (N.Y. Education Law sec. 2116, Public Officers Law sec. 87).
N.Y. Freedom of Information Law mandates that governmental agencies and bodies which includes school districts, must allow public access to official documents and records (See, Public Officers Law sections 84-90), subject to certain exceptions concerning confidential records (Public Officers Law, sec. 87 (2).
Disclosure Of Student Records
New York Freedom of Information Law does not allow disclosure of records or documents that are exempt from disclosure pursuant to federal or state statutory law (N.Y. Public Officers Law, sec. 87 (2)(a). Pursuant to the federal Family Educational Rights and Privacy Act (FERPA) a student’s disciplinary files, report cards and health records are “privileged documents” which are generally exempt from disclosure except as otherwise provided by law, i.e. disclosure to parents or eligible students (20 U.S.C., sec. 1232 (g). There are exceptions to non disclosure of student records, some of which allow disclosure about student names and addresses and disclosure to school officials who have a legitimate educational interest. Provided that a court order is obtained, school records can be inspected (20 U.S.C. sec. 1232 g(b)(i).
Disclosure Of Education Law Section 3020-a Disciplinary Charge Settlement Agreements
Generally, when a settlement is reached concerning a disciplinary proceeding brought against a tenured person under Education Law section 3020-a which settles disciplinary charges, the agreement is subject to disclosure under New York F.O.I.L. In order to protect privacy, students involved, denied or false charges and other employees, care should be exercised in drafting the terms of the settlement agreement and the disclosure of confidential information.
Hearings To Terminate Employment Of A Teacher Or Noninstructional Employee
Under circumstances where a teacher or noninstructional employee is confronted with the possibility of a disciplinary hearing for the purpose of suspending or terminating employment, the Law Office of Jerold S. Slate can provide legal counsel for the teacher or non instructional employee. A suspension or loss of employment can be devastating to the individual who suffers a loss of income and the potential loss of ability to obtain subsequent employment in one’s chosen profession or employment. Protecting and defending the legal rights of a teacher that is brought up on charges of incompetence, illegality, causing injury to a student or other serious charges will require the advocacy of a skillful lawyer to either proceed with a due process of law hearing or to work out a settlement agreement that is satisfactory to the school district and the teacher or other employee who is the subject of a disciplinary proceeding. When you retain Jerold Slate as your lawyer you will obtain knowledgeable, dedicated, intelligent legal counsel concerned with protecting and defending you and your legal rights.
New York Education Law, sec. 3214 authorizes suspension of a student from school. Ed. Law sec. 3214 subd. 3 provides, in part:
The board of education, board of trustees or sole trustee, the superintendent of schools, district superintendent of schools or principal of a school may suspend the following pupils from required attendance upon instruction:
A pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.
The board of education, board of trustees, or sole trustee, superintendent of schools, district superintendent of schools and the principal of the school where the pupil attends shall have the power to suspend a pupil for a period not to exceed five school days. In the case of such a suspension, the suspending authority shall provide the pupil with notice of the charged misconduct. If the pupil denies the misconduct, the suspending authority shall provide an explanation of the basis for the suspension. The pupil and the person in parental relation to the pupil shall be authorized to present the pupil’s version of the event and to ask questions of the complaining witnesses. The aforesaid notice and opportunity for an individual conference shall take place prior to suspension of the pupil unless the pupil’s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the pupils’s notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable.
No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to the pupil shall have had an opportunity for a fair hearing upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on behalf of such pupil.
Charges brought against a student that could result in a school suspension can have significant adverse consequences on the student as well as the student’s family, future and other students.
Decisions of the Commissioner of Education
The following are excerpts of Decisions of the New York State Commissioner of Education obtained from the Official website of the New York State Education Department. That website “does not warrant that the decisions appearing on its website are current, complete or accurate.” Nevertheless the Decisions of the Commissioner of Education can serve as a guide as to how a school district will decide school and education disputes and how the Commissioner will decide school and education disputes. References are also made to court cases.
The Law Office of Jerold S. Slate and the attorneys and authors of this website do not warrant that the references or information contained in these excerpts is current, complete or accurate and such references and information does not constitute legal advice.
If you or your student son or daughter are involved in a dispute involving school or education matters and you need legal advice, you can call the Law Office of Jerold S. Slate at (845) 471-4141 to arrange for a personal and confidential consultation.
STUDENT DISCIPLINARY PROCEEDINGS
•Notice of Student Suspension •Five Day Student Suspension •Expungement of Five Day Student Suspension
Appeal of R.Y., on behalf of her daughter N.Y., 49 Ed Dept Rep 16,046
"In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct. Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[b], 8 NYCRR §100.2[l]; Appeal of J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550). The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[b], 8 NYCRR §100.2[l])."
"The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension. This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).
The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l]). Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (see e.g. Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145)."
"Where possible, notification shall also be provided by telephone (8 NYCRR §100.2). Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of a Student with a Disability, 45 Ed Dept Rep 531, Decision No. 15,406; Appeals of E.R., 45 id. 487, Decision No. 15,389)."
"Petitioner contends that she did not receive written notice of N.Y.’s short-term suspension until April 11, 2008, two days after the suspension commenced on April 9. To support this contention, petitioner submits a copy of the certified mail envelope in which the letter was sent, which was postmarked April 10, 2008. Respondent alleges that petitioner received the notice prior to April 11 because petitioner emailed the principal regarding the suspension on April 11, 2008 at 12:27 a.m. Respondent further maintains that, even if petitioner did receive the notice on April 11, 2008, its “alleged mailing” of the letter on April 10, 2008, one day after the commencement of the five-day suspension, was sufficient as the district deemed N.Y.’s presence in school to be a continuing danger to persons or property. I disagree. The incident at issue in this appeal occurred on April 8, 2008. While the notice of the short-term suspension was dated April 9, 2008, the record indicates that respondent did not mail the notice until April 10, 2008. Respondent provides no explanation for this delay in mailing and no evidence that such mailing constitutes notice as soon after the suspension as was reasonably practicable. Moreover, the record indicates that respondent mailed the notice via certified mail, which is “no more expeditious than regular mail and, therefore, does not satisfy the regulation” (Appeal of a Student with a Disability, 40 Ed Dept Rep 47, Decision No. 14,418; see Appeal of J.G., 39 id. 393, Decision No. 14,270; Appeal of Milano, 37 id. 472; Decision No. 13,908). Accordingly, the five-day suspension must be annulled and expunged from N.Y.’s record."
"The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535)."
Consult With A Lawyer
RESIDENCY OF STUDENT (49 Ed Dept. Rep 16,037) (Excerpt)
"Education Law §3202(1) provides, in pertinent part:
A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition."
“The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593). “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).”
“The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).”
“Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Jeudy, 46 Ed Dept Rep 512, Decision No. 15,579). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (see Appeal of Moyer, 46 Ed Dept Rep 290, Decision No. 15,511; Appeal of Santana, 46 id. 255, Decision No. 15,499; Appeal of Werner, 45 id. 14, Decision No. 15,244).”
“Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeal of Proctor, 46 id. 575, Decision No. 15,599). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293) or the hardships of single parenting (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003). In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293).”
“A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452). In an appeal to the Commissioner, 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 (8 NYCRR §275.10; Appeals of Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).”
“Petitioner has failed to rebut the presumption that Brandell’s legal residence is with his mother. The application for care, custody and control submitted to the district in July 2009 stated that Brandell would live at petitioner’s address until he graduates. The application also indicated that one of the reasons Brandell was living with petitioner was education. These statements rightfully caused respondent to question whether the reason Brandell was residing with petitioner was to take advantage of the schools of the district. Although the petition stated that Brandell and his mother agreed that “they cannot live under the same roof”, no further explanation was given as to why this required Brandell to live with petitioner.”