Decision No. 13,797

(July 25, 1997)

MILLS, Commissioner.--Petitioner appeals the suspension of her daughter and requests that the Board of Education of the Ithaca City School District ("respondent") be directed to expunge the suspension from her daughter's record. On the record before me, I am constrained to dismiss the appeal.

This appeal stems from an unfortunate and disturbing incident which occurred on May 22, 1996. Petitioner's daughter J.B. was backstage in the auditorium working as stage manager for a student production at the Boynton Middle School. There were no adults or school personnel backstage during the play to supervise the student activities. Apparently, a confrontation arose between J.B. and three other students which escalated into a physical fight. According to petitioner, the other three students were being noisy and dropped a mirror. J.B. asked them to be quiet and to pick it up. The actual facts as to who spoke first, who spoke rudely and who initiated the fight are in dispute, but there is no dispute that J.B. ended up with severe scratches on her face, especially around her eyes, which required treatment by the school nurse and a subsequent visit to the emergency room. According to the petition, J.B.'s arms and thighs were also bruised in the fight. The nurse summoned J.B.'s parents to school. The Acting Principal, Mary Corcoran, was notified. She in turn called the Assistant to the Superintendent, John Caren.

There is also a dispute about who said what to whom after Mr. and Mrs. B. arrived at the school and what, if any, promises were made regarding respondent's response to the incident and subsequent actions. According to Ms. Corcoran, when Mr. B. arrived, he insisted that the police be called. In response, Gary Jordan, Deputy Sheriff of the Tompkins County Sheriff's Department, came to the school and met with J.B. and her parents. Petitioner claims that Deputy Jordan stated that if J.B.'s statements were true, assault charges could be brought against the individuals involved, but he needed to conduct an investigation. In the interim, John Baker, Administrative Liaison for Minority Students, located the other three students who had participated in the fight. At Ms. Corcoran's request, Mr. Baker had all three students call their parents to explain what had occurred. Ms. Corcoran also spoke to the parents, informing them that Mr. B. was pressing charges and asked them to come to school the next morning with their daughters to speak to Deputy Jordan.

The next morning, the other three students came to school unaccompanied. When Mr. Baker discovered this, he pulled them out of their first period class and had them wait for their parents to arrive. Subsequently, Deputy Jordan came and interviewed the three students, J.B., and other student witnesses. On May 24, Deputy Jordan informed Ms. Corcoran that his investigation showed that a verbal confrontation between J.B. and one of the girls escalated to mutual pushing, then to hitting, and that the two other girls then became involved. He concluded that the three other students could be charged with assault and that J.B. could be charged with attempted assault because the others had sustained no noticeable injuries. Ms. Corcoran determined, based on her conversations with J.B. following the incident and with the other girls the day following the incident, that all four students had some degree of culpability for the fight and that all four should be suspended for three days.

Petitioner was notified of the suspension by letter dated May 24, 1996, which stated:

Deputy Jordan also informed Mr. and Mrs. B. on May 25 of his conclusions and stated that warrants would be served on Monday, May 27. They then told Deputy Jordan they wanted to drop the charges.

Shortly after the incident and suspension, Ms. Corcoran learned that a walk-out was being planned by eighth graders who were concerned that the fight may have been triggered by racism and homophobia. She convinced the students to meet with staff instead. A second meeting with seventh graders followed. A letter was sent home on May 31, 1996, to all the parents informing them of these meetings and the fight which had caused the students' concerns.

On June 21, 1996, then counsel for petitioner wrote to respondent's interim superintendent about the events of May 22 and the aftermath. That letter discussed the potential accountability of the district and asked that the suspension be removed from J.B.'s record. There is no further correspondence in the record until November 7, 1996, when respondent's counsel informed petitioner in writing that the District would not expunge the suspension from J.B.'s record. This appeal was commenced on December 6, 1996.

Petitioner requests that J.B.'s suspension be expunged from her school record because the suspension was improper. She claims that the other three girls started the fight and her daughter was the victim of a bias motivated gang assault. Petitioner contends that Mr. Caren told them on the day of the incident that this was an assault, J.B. would not be suspended, that J.B. could attend the remaining theater productions and suggested that Mr. B. take J.B. home and keep her home the following day. She contends that Mr. Caren emphasized that this was to let things calm down; it was not a suspension. Petitioner asserts that J.B. was punished while the other girls involved were not because they were allowed in school the day following the incident. She also requests that a public letter of apology be sent in response to Ms. Corcoran's May 31 letter wherein the school would take responsibility for the attack due to a lack of adult supervision backstage.

In addition, petitioner requests reprimands against Acting Principal Corcoran, Assistant to the Superintendent Caren, and Sarah Jane Bokaer, the theater project teacher, for their misrepresentations and mishandling of the attack against J.B. and the aftermath. She claims Ms. Corcoran failed to provide adequate supervision to protect J.B., failed to follow district procedure regarding reporting the previous confiscation of a weapon from one of the other students involved in the fight, acted contrary to Mr. Caren's orders by suspending J.B. and denying her participation in the play, and publicly humiliated J.B. in her May 31 letter. Petitioner wants Mr. Caren reprimanded for not carrying out his decisions regarding this incident and for not being present during the police investigation. She also requests reprimands against the three other girls involved in the fight.

Respondent contends that the appeal must be dismissed because it is untimely and petitioner failed to join as necessary parties the three district employees against whom she seeks reprimands. Respondent also contends that any claim against Mr. Caren is moot because he has retired. In addition, respondent asserts that the

suspension was based on competent and substantial evidence, a suspension of three days was reasonable and the decision not to expunge the suspension from the record was rational. Finally, respondent asserts that it reviewed only petitioner's request for expungement. No other matters and relief requested in the petition were presented to it for review. Accordingly, respondent claims petitioner failed to exhaust its administrative remedies before bringing this appeal to the Commissioner.

Initially, I will address several procedural issues. First, petitioner has raised new allegations and submitted new material in her reply which are not responsive to respondent's answer. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR '275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeals of Lindauer and McKee, 34 Ed Dept Rep 596). Therefore, I will not consider those portions of petitioner's reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

In addition, the rights of Ms. Corcoran, Mr. Caren, and Ms. Bokaer would be adversely affected by a determination in petitioner's favor regarding reprimands against them. Therefore, they are necessary parties and should have been joined to the petition as such. Thus, to the extent the petitioner requests that I take action against any individuals other than respondent board of education, those claims must be dismissed in accordance with 8 NYCRR '275.8 for failure to properly join such individuals as parties to this appeal (Appeal of Duffy, 36 Ed Dept Rep 257; Appeal of Cardinal, 35 id. 76; Appeals of Skates and Poole, 35 id. 40; Appeals of Lindauer and McKee, 34 id. 596; Appeal of Smith, 34 id. 346). In addition, since Mr. Caren retired from the district on August 31, 1996, any claim against him in his official capacity is moot (Appeal of Whitney Point Parents Association, 36 Ed Dept Rep 236).

Respondent claims the appeal must also be dismissed because it is untimely. Respondent first claims that the action forming the basis for petitioner's complaint is the actual suspension on May 24, 1996. Respondent asserts that since the petition was not served until December 6, 1996, it is well beyond the 30 day time limit in 8 NYCRR '275.16 within which an appeal must be filed. Respondent also argues that even if the District's refusal to expunge the suspension was the triggering event for the appeal, oral notice of the district's decision was conveyed to petitioner's counsel by telephone on October 21, 1996, and that oral notice must be imputed to petitioner. Respondent argues that the December 6 petition is also more than thirty days from that October 21, 1996 decision.

Petitioner asserts that she is asking for expungement of the suspension from J.B.'s record. Therefore, the action she is appealing is the District's written decision on November 7, 1996. Since the petition was filed within thirty days of that action, she argues that the appeal is timely. However, petitioner is essentially arguing that the underlying suspension was improper. Moreover, since an expungement is an action for relief, a request for expungement cannot be considered without examining the validity of the underlying suspension. Thus, petitioner should have appealed the decision to suspend within thirty days of the actual suspension letter. Accordingly, since the appeal was not filed until December 6, 1996, the appeal must be dismissed as untimely.

Respondent also claims petitioner failed to exhaust her administrative remedies before bringing this appeal to the Commissioner. Section 3214(3)(b) of the Education Law allows a suspension of up to five days to be imposed by a school principal. Suspensions in excess of five school days are governed by Education Law '3124(3)(c), which delineates more stringent procedures, including a right to a hearing before the superintendent and a right to appeal the superintendent's decision to the board of education: "[a]n appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it." There is no similar procedural requirement for an appeal from a principal's decision to suspend for less than five days. Thus, petitioner was not required to pursue or exhaust any administrative remedies before bringing her appeal to the Commissioner.

Even if the appeal had been timely, 8 NYCRR '275.10 requires that a "petition contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (Appeals of Lindauer and McKee, 34 Ed Dept Rep 596).

Petitioner submits with the petition copies of the police statements from the three other girls, J.B., and two other witnesses, and an affidavit from a teacher aide. Respondent submits affidavits from 14 individuals. To the extent that some statements and affidavits directly contradict each other, they are in equipoise. The other girls say J.B. started the fight; she says they started it. While it is unclear who actually instigated the fight, it is clear from the bulk of the evidence submitted that J.B. was the only one of the four girls who suffered injuries. However, it is also clear from the evidence that J.B. at the very least participated in the altercation. Whether that participation consisted of merely defending herself, as petitioner alleges, or contributing to the escalation of the confrontation, as Deputy Jordan concluded, is not clear. However, Ms. Corcoran states in her affidavit that J.B. indicated, immediately following the incident, that "she was not clear on who pushed or hit first." Based on the evidence submitted, petitioner has failed to meet her burden of proving that the district was arbitrary in its decision to suspend all of the students involved in the fight. I therefore cannot overturn the suspension or order an expungement.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of A.B., 36 Ed Dept Rep 155; Appeal of Derosa, 36 id. 336). In this case, the district could have done a more careful job in conducting the investigation, (i.e., keeping all the involved students separate from each other before statements were taken). However, Ms. Corcoran and the police did conduct numerous interviews with all four girls and other witnesses to investigate the incident. Based on the record before me, the evidence appears competent and substantial that all four girls took part in a physical altercation. Accordingly, it was not unreasonable for Ms. Corcoran to have decided to discipline each of them.

Petitioner also objects that J.B. was not allowed to continue her participation in the school play. However, Education Law '3214 does not apply to suspension from extracurricular activities (Appeal of Douglas and Judy H., et al, 36 Ed Dept Rep 224; Appeal of Winchell, 35 id. 221; Appeal of Danison 31 id. 169). A board of education has very broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it is shown that the board has abused its discretion, its policy will be upheld (Appeal of Douglas and Judy H., et al, supra, Appeal of Tee, 27 Ed Dept Rep 349). Thus, respondent had the discretion to curtail J.B.'s participation in the play. Based upon the record, I cannot find that such discretion was abused.

Petitioner also argues that J.B. was singled out for suspension. However, further documentation submitted by respondent in response to a request from my Office of Counsel demonstrates that the other three girls received the same suspension letter from Ms. Corcoran on May 24, as quoted above, and did indeed serve a three day suspension.

To the extent petitioner seeks disciplinary action against District employees, it is the board of education which has the authority to take such disciplinary action, not the Commissioner. Moreover, a board of education has broad discretion to determine whether disciplinary action against an employee is warranted (Appeal of Rivenburg, 35 Ed Dept Rep 27; Appeal of Cardinal, 34 id. 76; Appeal of Karl, 34 id. 261; Appeal of Allert, 32 id. 538), so long as it has a reasonable basis to support its conclusion. In addition, petitioner never even asked respondent to discipline the three employees in question.

Although petitioner does not raise this issue, I am compelled to note that the written notice of the suspension issued on May 24 did not fully conform with the requirements in '3214(b)(3) or the implementing regulation at 8 NYCRR '100.2(l)(4). Section 3214(3)(b) provides that in the case of a short term suspension by the principal:

While under the facts of this case the parents, student and principal had all met immediately following the incident and the next day, the letter did not specifically inform petitioner of her right to request an informal conference with the principal. Nor did the letter specify the term of the suspension. Rather, it stated that "[J.B.] has been suspended from attendance . . . until all evidence received from the Tompkins County Sheriff's Department investigation is reviewed at District level." I admonish respondent to comply in the future with all applicable statutes and regulations pertaining to student suspensions.

Finally, I must also comment on other references appearing in the record. I am very concerned that bias, racism or homophobia may have played a part in the instigation of this incident. Hopefully, with the development of respondent's task force to avert the student walk out, respondent will be able to ensure an atmosphere conducive to learning and free from harassment for all students.

In view of the foregoing disposition, I will not address petitioner's remaining contentions.

THE APPEAL IS DISMISSED.

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