A decision issued by the Commissioner of Education on October 18, 2022, clarifies that school districts may not use email as the sole means to deliver a short-term suspension notice in the absence of prior parent consent to receive district communications by email.

Commissioner of Education regulation 8 NYCRR Section 100.2(l)(4) requires that when suspension of a student from attendance for a period of 5 days or less is proposed, the school must immediately notify the parents or the persons in parental relation in writing that the student may be suspended from school. This notice must provide the parents with certain specific information regarding their rights, such as their right to request an immediate informal conference with the building principal. The regulation provides, in pertinent part, that “[w]ritten notice 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 at the last known address or addresses of the parents or persons in parental relation.” (emphasis added). (Neither regular mail nor oral communication satisfy this regulatory requirement.)

When the student’s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, Section 100.2(l)(4) requires the notice and opportunity for an informal conference take place as soon after the suspension as is reasonably practicable.

Prior to October 18, 2022, it remained an open issue as to whether or not electronic mail is sufficient as the sole means to deliver a short-term suspension notice. In Appeal of J.B.W., on behalf of her child, from action of the Board of Education of the City School District of the City of Buffalo regarding student discipline, Decision No. 18,205 (October 18, 2022) ((hereafter “Appeal of J.B.W.”) available here), the Commissioner answered this question in part. There, a student was suspended for 5 days on February 7, 2022, for recording a fight on his cell phone. On February 8, 2022, the school mailed a notice of short-term suspension to the parent, by regular mail, which alone is insufficient notice under the regulation. On February 9, 2022, the principal provided notice of the short-term suspension as an email attachment to the parent and her attorney. The parent indicated she could not open the emailed suspension letter. 

On appeal, the parent argued the short-term suspension should be expunged, due to the school’s failure to provide legally-sufficient notice. The district argued it was not required to deliver a copy of the short-term suspension notice prior to imposition of the student’s suspension because the student presented a continuing danger to persons or property and/or an ongoing threat of disruption to the academic process. The Commissioner stated that “even assuming the validity of this determination” (which is questionable at best in light of established precedent), the district remained obligated under the regulation to deliver the notice as soon as “reasonably practicable.” 

The Commissioner explained that, to the extent the principal’s February 9, 2022, email communication may constitute sufficient notice, the district did not explain how or why it took almost 48 hours to transmit notice via email. Moreover, the Commissioner stated the email communication could not have served the purpose of the written notice in that matter in any event, because:  (1) the district did not prove the parent’s prior consent to receive district communications via email; and (2) the parent asserted she was unable to open the emailed suspension letter.

The Commissioner also reminded school boards in this decision that, while they may adopt a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner, any such policy must be reasonable and clearly communicated to parents. There, while the Buffalo City School District had adopted such a policy, it failed to establish such requirement was “clearly communicated” to the parent. As such, the Commissioner declined to dismiss the appeal for failure to exhaust administrative remedies.

Key Takeaways and Practice Pointers

  • Do Not Use Email as the Sole Means to Deliver Short-Term Suspension Notices Absent Prior Written Parent Consent. Personal delivery or express mail delivery of the short-term suspension notice remain the sole foolproof ways to ensure regulatory compliance. The Commissioner suggested, though did not state definitively, that email may be sufficient to provide short-term suspension notice to parents in accordance with the applicable Commissioner regulation if the parent has previously consented to receiving district communications via email.  School districts that decide to accept any related risk and use email to send short-term notices with prior written parent consent must also be sure that any email attachments are sent in a format parents can access (as the parent in Appeal of J.B.W. argued she was unable to open the emailed suspension letter).  
  • Notify Parents of Appeal Protocols in Short-Term Suspension Letter. If the board of education has adopted a policy requiring students to appeal short-term suspensions to the superintendent and/or board of education before appealing to the Commissioner, any such policy must be reasonable and clearly communicated to parents in the notice of short-term suspension.  It is prudent to review policy language, code of conduct language and short-term notice language to verify that appeal procedure language is consistent.  Such appeal procedures must also be reasonable in accordance with established Commissioner decisions.    

Please contact Sara Visingard at (585) 419-8748 or svisingard@harrisbeach.com or the attorney with whom you typically work for related questions or guidance.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.