Appeal of W.T., on behalf of A.T., from action of the Board of Education of the Freeport Union Free School District regarding student discipline.

Decision No. 15,534

(February 22, 2007)

George Nager, Esq., attorney for petitioner

Ingerman Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges his son’s suspension from school in the Freeport Union Free School District.  The appeal must be dismissed.

Petitioner’s son, A.T., attended Freeport High School during the 2004-2005 school year.  On May 26, 2005, the principal suspended A.T. for five school days for “[e]ngaging in an assault and robbery of a Freeport High School student.”  On June 7, 2005, after a superintendent’s hearing, the superintendent found A.T. guilty of the charges and suspended him from school through May 19, 2006.  On August 4, 2005, petitioner attempted to appeal to the Commissioner by service of a notice of petition and petition on the district clerk.  Upon receipt of petitioner’s appeal, my Office of Counsel returned his papers, indicating that the notice and the affidavit of service were incomplete.

Petitioner also appealed the superintendent’s determination to the Board of Education of the Freeport Union Free School District (“respondent”) which considered his appeal on August 10, 2005 and upheld the superintendent’s determination.  On August 19, 2005, petitioner re-served the district with a corrected notice of petition and petition and, thereafter, filed his papers with a properly completed affidavit of service.  The re-served appeal reiterated the claims set forth in the original petition dated August 4, 2005, and made no mention of respondent’s August 10, 2005 determination.

Petitioner alleges that A.T.’s suspension by the superintendent denies A.T. the public education to which he is entitled under the State Constitution, lacks a legal basis, is educationally unsound, and is disproportionate to the offense.  Petitioner also alleges that the school district violated A.T.’s constitutional and statutory rights by failing to provide him with alternative education.  Finally, petitioner asserts, on information and belief, that the district’s action may be based on bias against Latin-American students.  Petitioner seeks an order annulling the superintendent’s decision, reinstating A.T. and expunging his records, referring the matter to a committee to address the district’s failure to provide alternative education and requiring the district to provide compensatory education.

Respondent denies petitioner’s allegations and asserts that petitioner has not demonstrated a clear legal right to the relief sought.  Although there is no allegation in the petition regarding an appeal to the board of education, the board is named as respondent and its answer asserts that the superintendent “and thereafter the Board of Education” acted properly in suspending A.T.  The board further asserts that it attempted to provide A.T. with alternative education, but he refused to attend.

Initially, I must address several procedural issues.  The record reveals that petitioner’s reply contains new factual allegations not previously stated or set forth in the petition.  The reply also alleges for the first time a claim regarding the sufficiency of the appeal proceeding before the board of education.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer or new claims raised for the first time.  Similarly, I have limited my consideration of respondent’s response to petitioner’s reply and petitioner’s sur-response.

I also decline petitioner’s request that I obtain for consideration the record of “anything that transpired” at the August 10, 2005 board meeting at which it considered petitioner’s appeal of the superintendent’s determination.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).  Respondent did submit the record of the superintendent’s hearing which is accepted for consideration.

Because A.T. was suspended through May 19, 2006, which has passed, the appeal is moot, except to the extent petitioner seeks expungement of A.T.’s records (Appeal of S.W., 44 Ed Dept Rep 446, Decision No. 15,226; Appeal of M.P., 44 id. 132, Decision No. 15,123).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  The petition is entirely devoid of factual allegations in support of petitioner’s claims.  It consists solely of six conclusory allegations regarding A.T.’s suspension.  Petitioner submits no facts, affidavits, exhibits or other evidence with his petition to support those allegations.  Indeed, petitioner characterizes his conclusory statements as questions for consideration.  Petitioner, therefore, provides no basis on which to sustain his appeal.

In addition, upon review of the record of the superintendent’s hearing, I find no basis on which to overturn respondent’s determination.  The record indicates that, on the afternoon of May 20, 2005, A.T. and another high school student boarded a school bus ridden by J.M.  When J.M. disembarked, A.T. and the other student also got off the bus and followed him.  They assaulted J.M. and stole his cell phone and book bag, subsequently throwing the book bag in some bushes.

Petitioner does not contest that A.T. participated in this incident.  However, petitioner asserts that A.T. should not have been disciplined because the incident occurred off school grounds.  There is no merit to petitioner’s assertion.  Prior Commissioner’s decisions have upheld the suspension of students for off-campus conduct (Appeal of K.S., 43 Ed Dept Rep 492, Decision No. 15,063; Appeal of Ravick, 40 id. 262, Decision No. 14,477; Appeal of Orman, 39 id. 811, Decision No. 14,389).  Case law has also recognized that students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety or pupils within the educational system or adversely affect the educative process (Matter of Coghlan v. Bd. of Educ. of Liverpool Cent. School Dist., 262 AD2d 949, citingPollnow v. Glennon, 594 F.Supp. 220, 224, affd 757 F.2d 496).  The incident for which A.T. was suspended began when he deliberately boarded J.M.’s school bus to follow him.  Moreover, his deliberate involvement in the assault and robbery of a fellow student endangered the health and safety of a pupil within the educational system.  Thus, the district had authority to adjudicate the matter.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).

A.T.’s anecdotal record indicates two prior suspensions, one out-of-school suspension for fighting and one in-school suspension for insubordination, as well as an extensive record of cutting class.  Given A.T.’s deliberate participation in the assault and robbery, the seriousness of that incident and consideration of his prior record, I find that the penalty imposed upon him was not so excessive as to warrant substitution of my judgment for that of respondent.  I have considered petitioner’s remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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