© 2017 Michael Livolsi Law. Disclaimers.


March 18, 2016


Student Discipline leading to suspension in NY schools can seem like a daunting procedure to both families and schools alike.  In fact, so many attorneys get confused by the complicated regulations, which are often difficult for schools to properly implement, that there are often procedural issues which present families with an opportunity to appeal.  However, once informed, the procedures can be easy to follow, and both schools and parents can ensure that the process is correctly implemented. 




The student Discipline process can be boiled down to the following elements:

  1. A suspension of less than five days (10 if in a charter school) only requires an informal conference with the parent and student to discuss the charges .

  2. A suspension of five days or more (10 days or more if in a charter school) requires:

    • A notice of the charges

    • The scheduling of a hearing

    • This requires notice of the hearing and the student and parent rights in the hearing.

  3. The conduct of a due process hearing.  This hearing takes places in the following manner: 

    • Phase I – Guilt: evidence is produced bearing on the guilt or innocence of the student regarding the charges noticed.

    • If the student is disabled or presumed to be disabled, the school must provide a manifestation determination hearing if the result of Phase I is that the student is guilt

    • Phase II – Penalty: evidence is produced bearing on what, if any, disciplinary penalty should imposed.

  4. appeals.  The student and parents have a right to appeal any disciplinary decision as follows:

    • Appeals to the Board of Education, if the Board has a policy that such appeals may be taken.  Usually appeals of suspensions for less than 5 days are required to be filed within fifteen days of the decision.  Appeals of suspensions in excess of five days are typically required to be filed within thirty days.  Refer to your Board’s policies for specifics. 

    • Appeals to the Commissioner.





Below, you will find more detail about the steps identified in the bulleted list above:  


1. The process, generally. 


In order to suspend a student, the school must provide the parent and student with timely notice.  If a suspension is less than five days, the family has a right to request an informal conference.  If more than five days, the school must hold a hearing before the student is suspended for more than 5 days.  If the school is a charter school, the five day period becomes a ten da period.  The hearing must take place in two separate parts – a guilt part and a punishment part, in that order.  If the student has and IEP, is known to have a disability or presumed to have a disability, the punishment part of the hearing cannot take place without the manifestation team making a manifestation determination.  This step requires several key school personnel and the parent determining  whether the conduct the student is alleged to have engaged in is a manifestation of a disability.  If the student is guilty and the conduct is not a manifestation of a disability, the penalty phase of the hearing is commenced.  These steps are all typically  accomplished in the same day.  Often, the school will retain a hearing officer to conduct the hearing. 


2. the charges


Schools must notify parents of the disciplinary charges promptly and clearly, indicating the conduct alleged and the anticipated punishment.  This is usually done in the form of a letter to the parent, sent home with the student, and simultaneously mailed or emailed.


This step is fairly self-explanatory, but is often overlooked. 


3. Suspension for five days or less


If the student is suspended for five days or less, (or, if the student is in a charter school, 10 days or less) the school must promptly notify the parent BEFORE the suspension takes place, and notify the parent of the opportunity to request an informal conference with the principal.  This notice need not be given before the implementation of the discipline if the child’s presence in the school is, itself, a safety hazard. 


Practically speaking, this means the school will notify the student and the parent in the same day by sending a letter home with the student and making a phone call to the parent.   The suspension will typically begin the following day..  If the student’s presence is not a danger, they will usually keep the student in in-school suspension and send the letter home, implementing the suspension the following day. 


4. Suspension for more than 5 days. 


A school cannot suspend a student for more than five days without a hearing (or, if the student is attending a charter school, ten days).  The school must provide notice of the hearing, with an explanation of the charges, at least 72 hours before the hearing.  The notice must explain the charges, and the student’s and parent’s rights.  This means that the school’s notice should contain:


  1. The date, time and location of the hearing

  2. A description of the conduct alleged to have violated a disciplinary rule

  3.  A statement of the parent and student rights, which are:

    • The right to be represented by counsel;

    • The right to question witness against the student;

    • The right to refrain from testifying at said hearing, since any testimony may be used against you;

    • The right to present witness on your behalf;

    • The right to have the Principal and Superintendent issue subpoenas on your behalf;

    • The right to make any statement on your behalf concerning the alleged incidents;

    • The right to have a record of the hearing maintained;

    • The right to written findings of fact by the Principal and Superintendent;

    • The right to appeal to the Board of Trustees;

    • The right to appeal to the Commissioner;

    • The right to receive prior notice of the contents of an anecdotal record and the opportunity to rebut its effect.


For schools: The best practice is to include all of these notices on your hearing notice, although not all omissions are currently appealable error.  However, these are all rights which the parent and family have and, at some point, could lead to an appealable error if not provided.  Appeals to the commissioner are often reviewed by judges in article 78 proceedings, which is another opportunity to create an appealable right.  Therefore, it is advisable to include the entire list on your notice.  If one of these rights is used by the parent and has the potential to delay the proceeding, the school may condition an adjournment upon the parent’s consent to an extension of the original five day suspension period until a hearing is held. 


For Families: Families should be aware that, although these are all rights which the family has, not all omissions of these rights in your notice may be an appealable error.  If, however, the school neglects to advise you of your right to be represented, an appealable error has likely occurred.  If you are going to exercise any of these rights, do it THE DAY you receive the notice, to prevent any delay.  This means you should sit down with your child, ask them who witnessed the events, what happened, and if they are aware of any documents, pictures, videos, recordings, etc., of the basis of the charges.  This could include a school’s security camera footage, a friend’s cell phone images or video, or just the name of students and staff who saw the event.  If you want these individuals to testify, you must contact the haring officer, preferably via email, and the superintendent, requesting that they be subpoenaed, or that the school be compelled to have them attend the hearing. 


6. the hearing


Superintendents and Boards of Education can hold hearings to determine the guilt or innocence of a student accused of wrongdoing.  The Superintendent and, of necessity, the Board can appoint a hearing officer.  The hearing officer’s decision is advisory only, and the board or the superintendent can adopt it or disregard it, although it is most often adopted. 


The hearing must take place in two parts, and in some cases a third, intermediary part is required.  The first part of the hearing is to determine the guilt or innocence of the student.  The School will present evidence and testimony, including photographs, witness statements, and electronic records which tend to show the guilt of the student.  The witness will usually be an administrator or a teacher, and more often than not the witness will not have first-hand knowledge of the conduct or events, but will be presenting hearsay testimony.  Hearsay testimony is permissible in these hearings and can be the sole basis of the school’s proof. The parent and student will have an opportunity to cross examine the witnesses, and call witnesses of their own.  After this, if the hearing officer determines that there is sufficient evidence to find the student guilty, he or she will make that determination and move on to the punishment phase of the hearing.  This phase is where the school admits evidence showing the harm or danger that was caused or posed, and property damage, the social implications of the conduct, whether the conduct is likely to happen again or to result in unrest or violence in the future.  The school will almost always admit and consider the student’s entire disciplinary history, attendance and academic performance records. They will note the student’s attitude and statements.  Afterward, the hearing officer will make a determination of how long the suspension should last. 


7. The manifestation determination


If the student has an IEP, has a disability, or is presumed to be disabled, the school must not and cannot hold the punishment phase of the hearing until a manifestation determination has been made by the manifestation team.   The manifestation team must consist of:


  • A representative of the school district knowledgeable about the student and the interpretation of information about child behavior;

  • Parent/guardian; and

  • Relevant members of CSE as determined by parent and district


The parent is entitled to a notification that the Manifestation team meeting will happen, and the names of the expected attendees.  The parent may also request specific CSE members to attend.


The purpose of the manifestation team meeting is to determine heither:


  • The conduct in question was caused by or had a direct and substantial relationship to the student’s disability; or

  • The conduct in question was the direct result of the school district’s failure to implement the IEP. 


In making these determinations, the manifestation team reviews all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents. 


If the answer to either of these questions is yes, the School cannot move forward with the disciplinary phase of the hearing, the hearing must be stopped and the school cannot punish the student.  The CSE must then conduct a functional behavioral assessment and implement a behavioral intervention plan, and return the student to the regular school environment immediately.  If they find there is a deficiency in the IEP, they must take immediate steps to remedy that deficiency. 




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