Apr 28th, 2023

Short term Suspensions and Complaining Witnesses: When must a school district produce a student witness at the principal’s “informal conference?"

In a recent decision, the Commissioner of Education further emphasized the need to specifically comply with the procedural requirements for a suspension from attendance of 5 days or less, also called a “Principal’s suspension” and further defined who may be a “complaining witness” at the informal conference. In October of 2021, during crew team practice, a tenth-grade student on the team spit water on one of her teammates. No school official witnessed the act, and the school commenced an investigation following a complaint. At a meeting with the Athletic Director and team coach, the student admitted to spitting on a teammate, but insisted it was an accidental reflex to a joke, aka a “spit take” The principal then held a meeting with the student to discuss the spitting as well as additional claims that she had made derogatory comments about the same teammate’s ethnicity. The student again insisted the spitting had been accidental and that the derogatory statements were both inaccurate and any comments she had made were meant as a joke. Fourteen days later the principal sent a written notice to the family stating the student was being suspended for 5 days, indicating that the student’s continued presence in school posed a continuing danger and/or ongoing threat of disruption to the academic process, barring her from playing a school sport for the remainder of the school year, and notifying her that she was entitled to an informal conference to discuss the matter. The informal conference was held after the suspension from attendance had begun. District permitted the family to meet with all the school personnel who had been part of the investigation, but not any student witnesses.

Upon review, the Commissioner annulled the suspension from instruction and ordered it expunged from the student’s record. In her decision, the Commissioner noted several pertinent procedural failures of which all school districts should take note.

First, the law requires districts to send notice to the parent prior to suspending a student that it is considering suspension of 5 days or less and offering an immediate opportunity for an informal conference with the principal, at which the student or parent may ask questions of complaining witnesses While a school district may suspend prior to holding the informal conference where the student is an ongoing danger to persons, property, or disruption of the academic process, the Commissioner stated that argument automatically fails where the student was allowed to attend school for the 14 days between the incident and the letter imposing the suspension.

Second, the Commissioner stated that the family is entitled to ask questions of complaining witnesses at the informal conference, and more importantly, “an administrator may only be a complaining witness if he or she directly observed or discovered student misconduct”. Because the individuals who were eyewitnesses to the misconduct in this case were all students, the District was obligated to make them available at the informal conference with the Principal. The Commissioner stated that the only exceptions to providing the student witnesses are 1) where the student witnesses’ identity is unknown to the student being charged with misconduct and 2) the District reasonably considers the charged student to be potentially violent. The Commissioner rejected the Principal’s statement that producing one or more students would have been unreasonably dangerous and constituted an unwarranted invasion of their privacy.

The Commissioner’s decision raises many issues about handling student witnesses at an informal conference. Does the District have to produce every student who is a witness, or only one? Where the parent wants the informal conference outside the regular school day, does the District have any authority to require a student witness to stay later or is parental consent required? May the District insist that the informal conference take place during the course of the regular school day?

In short, where a school district is considering a suspension of 5 days or less, we strongly recommend using adults who are eyewitnesses to the misconduct as the “complaining witness”. Where only students are eyewitnesses, we recommend that you contact legal counsel about how to proceed.

i Appeal of B.M. and P.M. from Action of BOE of Manhassett Union Free School District, Commissioner’s Decision #18,249.


James A. Gregory

James A. Gregory, a partner at Ferrara Fiorenza, has been practicing education law, labor law, municipal law, and public sector employment law for more than 20 years.

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