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

Decision No. 15,562

(March 30, 2007)

John J. McGrath, Esq., attorney for petitioner

Ehrlich, Frazer & Feldman, attorneys for respondent, Michael Perna, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his son by the Board of Education of the Locust Valley Central School District (“respondent”).  The appeal must be sustained in part.

On October 26, 2005, petitioner’s son, then an eighth grade student in respondent’s middle school, was allegedly involved in an altercation with two other students in the boys’ locker room.  During the altercation, a boy was slapped across the face, allegedly by petitioner’s son.  The principal suspended him for five days concluding on November 3, 2005.  A superintendent’s hearing was scheduled for Thursday, November 3, 2005 at 2:30 p.m. but respondent was unable to proceed until 5:30 that evening.  The hearing was therefore adjourned until Tuesday, November 8, 2005. 

At the conclusion of the hearing, the hearing officer found that petitioner’s son engaged in violent and abusive conduct directed toward another student, uttered vulgar statements to the other student and slapped him.  He thereby found petitioner’s son guilty of engaging in conduct that was insubordinate, disorderly, violent, disruptive and a danger to the safety, morals, health and welfare of others.  He recommended that petitioner’s son be suspended until February 26, 2006 and excluded from all co-curricular and extra-curricular activities, including all after-school activities and end-of-year moving up exercises through June 30, 2006.  By letter dated November 17, 2005, the superintendent adopted the hearing officer’s finding of guilt and recommended penalty.  Petitioner appealed to respondent, which upheld the superintendent’s decision on January 17, 2006.  On February 8, 2006, respondent issued a letter to petitioner reaffirming its January 17, 2006 decision.  This appeal ensued.

Petitioner claims that his son was suspended without receiving proper notice of his due process rights because the notice concerning the initial five-day suspension failed to inform him of his right to ask questions of complaining witnesses.  Petitioner, therefore, requests that I order respondent to admit his son to school and permit his attendance at all activities.  Petitioner also seeks expungement of the suspension from his son’s record.  

With respect to the long-term suspension, petitioner claims that insufficient evidence was offered to support the hearing officer’s decision and that the hearing officer should not have considered his son’s anecdotal record.  Additionally, petitioner asserts that his son should have been allowed to attend school on November 4 and 7, 2005 when his disciplinary hearing was not able to commence on the originally scheduled date of November 3, 2005.  Finally, petitioner asserts that respondent had sufficient notice that his son was a student presumed to have a disability for disciplinary purposes and therefore, the disciplinary hearing should have been adjourned to allow respondent’s Committee on Special Education (“CSE”) to determine whether his son’s behavior was a manifestation of his disability.  

Respondent argues that the petition should be dismissed as untimely.  It also argues that portions of the petition are moot and that the petition fails to state a claim for which relief can be granted.  Respondent maintains that the disciplinary sanction imposed is not excessive and is based on credible, substantial and competent evidence.

I must first address several procedural matters.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Respondent argues that petitioner’s time to file an appeal began to run from respondent’s January 17, 2006 letter, the first letter it issued upholding the superintendent’s decision.  I disagree.

By respondent’s own admission, it elected to consider a sur-reply submitted by petitioner on January 12, 2006, the day respondent was to review the appeal.  Although the sur-reply was submitted too late to be considered at the January 12, 2006 meeting, it agreed to consider the sur-reply at a later meeting on January 26, 2006.  A decision was issued by respondent on January 17, 2006.  After consideration of the sur-reply, respondent sent a letter dated February 8, 2006 reaffirming its earlier decision and stating that petitioner had the right to appeal its decision to my office.  Therefore, the letter that petitioner is appealing, wherein respondent made its final determination to uphold the superintendent’s decision, is the February 8, 2006 letter (Appeal of B.H., 45 Ed Dept Rep 166, Decision No. 15,291; Appeal of Richardson, 41 id. 410, Decision No. 14,728).  Petitioner commenced his appeal within 30 days of that letter.  Therefore, this appeal is timely.

     Respondent also requests that I disregard petitioner’s reply because it is not verified and it sets forth additional facts and allegations not previously asserted.  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 E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Additionally, §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioner’s reply submits new evidence meant to support the allegations in his petition.  Moreover, the reply submitted was not verified in violation of §275.5.  Therefore, I have not considered petitioner’s reply, (seeAppeal of a Student with a Disability, 46 Ed Dept Rep 102, Decision No 15,454; Appeal of Nocerino, 40 id. 244, Decision No. 14, 472).

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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Therefore, I find that because petitioner’s son has served the suspension, the appeal is moot except to the extent that petitioner seeks expungement of his son’s record (Appeal of M.S., 44 Ed Dept Rep 478, Decision No. 15,237; Appeal of a Student With a Disability, 44 id. 136, Decision No. 15,124).

With respect to the initial five-day suspension, petitioner argues that the notice was defective because it did not inform him of the opportunity to question complaining witnesses.  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).

In this case, the principal’s October 27, 2005 letter did not meet the requirements described above.  It failed to inform petitioner that he could request an opportunity to question complaining witnesses (Appeal of P.D., 46 Ed Dept Rep 50, Decision No. 15,438; Appeal of M.S., 44 id. 478, Decision No. 15,237).  Accordingly, the five day suspension must be annulled and expunged from petitioner’s son’s record.

Petitioner next complains that his son was suspended for more than five days prior to the superintendent’s hearing.  The hearing for the long-term suspension was scheduled to begin at 2:30 p.m. on November 3, 2005, the fifth day of the initial suspension.  However, due to the scheduling of another hearing, respondent was unable to proceed with the scheduled hearing until 5:30 that evening and the hearing was rescheduled for November 8.  The student remained out of school until the rescheduled hearing date.

Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf.  Under the circumstances in this case, I find that respondent improperly excluded petitioner’s son from school for more than five days.  Accordingly, the suspension for November 4 through November 8, 2005 must also be expunged from petitioner’s son’s record.

Petitioner also claims that his son should have been treated as a student presumed to have a disability for disciplinary purposes.  Section 201.5(a) of the Commissioner’s regulations provide, in part:

Where the school district is deemed to have knowledge that the student was a student with a disability before such behavior occurred, such student is a “student presumed to have a disability for discipline purposes.

A district is only deemed to have knowledge of a disability if one of several conditions is met prior to the time the behavior occurred (8 NYCRR §201.5[b]).  In this case, petitioner describes several meetings with school staff in October 2004, when his son was diagnosed with ADHD as evidence that respondent was deemed to have knowledge of his son’s disability.  However, it was not until after the events of October 26, 2005 that petitioner and his wife formally referred their son to respondent’s CSE for a determination as to whether he was eligible to be classified as a student with a disability.   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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Accordingly, petitioner has not met his burden of establishing any basis to deem that the district had knowledge of a disability prior to the time of the behavior. 

Finally, petitioner claims that the evidence offered at the hearing was insufficient to support the hearing officer’s decision.  The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107). 

At the hearing, petitioner’s son testified as well as the alleged victim and an assistant principal who obtained a written admission by petitioner’s son.  Petitioner claims that the evidence at the hearing was insufficient because no other witnesses to the event testified.  However, I note that petitioner’s son admitted in his testimony that he danced at the alleged victim in a manner derived from the movie Jackass and that he eventually slapped the alleged victim.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (seee.g.Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960; Appeal of P.K., 41 id. 421, Decision No. 14,733).  Thus the evidence supports the hearing officer’s findings and I will not disturb the long-term suspension.

I also find the use of petitioner’s son’s anecdotal record proper.  A student’s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty, and only if notice of its contents has been given in advance to the student (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of a Student Suspected of Having a Disability, 41 id. 253, Decision No. 14,678; Appeal of Ezard, 29 id. 135, Decision No. 12,245).  The record in this appeal reflects that the student’s anecdotal record was only admitted once the student was found guilty.  I also note that no objection was made to the admission of the record at the hearing.  Furthermore petitioner was notified that his son’s anecdotal record would be considered and that he could review it prior to the hearing.  Under these facts, the admission of petitioner’s son’s anecdotal record at the penalty phase of the hearing was proper.   

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

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent’s suspension of petitioner’s son from October 27, 2005 through November 8, 2005, be annulled and expunged from the student’s record.

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