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Decision No. 15,388

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parents, from action of the Board of Education of the Syosset Central School District regarding student discipline.

Decision No. 15,388

(March 21, 2006)

Neufeld & O'Leary, attorneys for petitioner, Tamar Finkelstein, Esq., of counsel

Law Office of Vanessa M. Sheehan, attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

MILLS. Commisssioner.--Petitioners appeal the suspension of their son by the Board of Education of the Syosset Central School District ("respondent"). The appeal must be sustained in part.

Petitioners' son, who attended fourth grade in respondent's district at the time of the event leading to this appeal, had previously been classified as a student with a disability, but was declassified at the end of the 2002-2003 school year. On the evening of April 14, 2005, the school principal telephoned petitioners and notified them that their son had been suspended for five days commencing on April 15, 2005 for writing a threatening note. Subsequently, the principal mailed a letter to petitioners dated April 15, 2005, indicating that their son had been suspended for engaging in "conduct construed as intimidation (as in the writing of statements that put an individual in fear of bodily harm)" in violation of respondent's code of conduct. She also informed petitioners that they were entitled to an immediate informal conference where they could discuss the matter and question complaining witnesses. On April 18, 2005, the student's father requested an informal conference, and the principal met with him on April 19, 2005.

By letter dated April 18, 2005, respondent's deputy superintendent notified petitioners that the student was charged with violating section E6 of respondent's code of conduct and that a superintendent's hearing would be held on April 22, 2005. The superintendent's hearing was adjourned pending an evaluation by the Committee on Special Education. This appeal ensued.

Petitioners allege that respondent violated statutes, regulations, its code of conduct and their rights. Petitioners allege that an informal conference did not take place prior to the suspension. They further argue that the meeting between the student' s father and the principal on April 19, 2005 did not constitute an "informal conference" because petitioners were denied the opportunity to question complaining witnesses. They also allege that they were not properly informed of the alleged misconduct and that respondent selectively enforced its code of conduct.

Petitioners request that the five-day suspension be expunged from the student's record and that no further discipline be imposed in connection with the April 14, 2005 incident. Petitioners also request that I direct respondent to protect the student from bullying. Finally, petitioners request that I award them attorneys' fees and costs.

Respondent alleges that petitioners' claim relating to the five-day suspension is moot and that the claim relating to subsequent disciplinary action is premature. Respondent contends that petitioners were given the opportunity to confront the complaining witness --the school principal-- at the informal conference. Respondent also contends that it acted rationally because it must regard all threats as serious. Respondent alleges that its April 15, 2005 letter was specific enough to advise petitioners of the conduct complained of. Finally, respondent alleges that petitioners have failed to establish a legal right to the relief requested, and that I lack jurisdiction to award attorneys' fees.

Initially, I must address several procedural issues. A memorandum of law should consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540). Therefore, while I have reviewed respondent's memorandum of law, I have not considered those portions which do not consist of arguments of law, or which add belated assertions.

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR �276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Gehl, et al., 42 id. 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal ( Appeal of Gehl, et al., 42 Ed Dept Rep 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086). Therefore, I decline to accept respondent's sur-reply.

Respondent argues that the appeal is moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). Respondent claims that the student's disciplinary record will not be transmitted to middle school or become a part of his permanent record. However, because the suspension will appear on his elementary school record throughout the 2005-2006 school year, this appeal is not moot.

As to the merits, 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[3][b][1], 8 NYCRR �100.2[l][4]; Appeal of R.F., 43 Ed Dept Rep 206, Decision No. 14,972). 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[3][b][1], 8 NYCRR �100.2[l][4]).

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 R.M. and L.M., 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).

Petitioners argue that they were denied the opportunity for an informal conference at which they could question complaining witnesses. Respondent denies this allegation and maintains the principal was the complaining witness. It contends that the principal met with the student's father for approximately 15 minutes on April 19, 2005, showed the note to the student's father, and confirmed that the matter had been referred to the superintendent for further action.

The purpose of �3214(3)(b) is to allow the principal at an early date, and based upon questioning in her presence, to decide whether the original decision to suspend was correct or should be modified (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 169, Decision No. 14,204; Appeal of Milano, 37 id. 472, Decision No. 13,908). That opportunity was not present here. In her affidavit, the principal states that a student saw the note and brought it to the attention of the student who was the subject of the note and informed his teacher. The principal also avers that a support service teacher and a classroom teacher assistant were involved in dealing with the incident and that the teacher assistant removed the note containing the threat from the student's notebook. Even if no student witnesses were available to testify, respondent fails to explain why the district employees (at least one of whom was a first hand witness), were not made available. Petitioners were not afforded the opportunity to question any of these witnesses. The student' s suspension from April 15 to April 21, 2005 must, therefore, be annulled and expunged from his record.

With respect to petitioners' request for attorneys' fees and costs, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law �310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

Finally, since there is no indication in the record that any additional penalty was contemplated against, or was imposed on the student, I need not address petitioners' arguments regarding further disciplinary action against their son. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Lombardo, 44 Ed Dept Rep 167, Decision No. 15,135; Appeal of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805; Appeal of Sheppard, 41 id. 150, Decision No. 14,643).

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the student's record any reference to his suspension from April 15 to April 21, 2005.

END OF FILE