Appeal of C.D. and P.D., on behalf of their son D.D., from action of the Board of Education of the LaFayette Central School District and High School Principal Paula Cowling regarding student discipline.

Decision No. 15,563

(April 12, 2007)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Craig M. Atlas, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the LaFayette Central School District (“respondent board” or “board") and its high school principal (collectively, “respondents”) to suspend their son, D.D.  The appeal must be dismissed.

During the 2005-2006 school year, D.D. was a tenth-grade student at respondents’ high school.  On January 26, 2006, a food fight occurred in the high school cafeteria during D.D.’s lunch period.  At or about 7:15 a.m. on January 27, 2006, the principal telephoned petitioners and asked them to meet with her that morning to discuss the incident.

 Later that morning, D.D. and his mother met with the principal and assistant principal and were informed that D.D. was charged with “endangering the health and safety” of others by “initiating and executing” the January 26, 2006 food fight.  The record indicates that at this meeting, petitioners were provided with a copy of D.D.’s student discipline report from January 26, 2006.  Petitioners claim that when D.D.’s mother asked to confront the complaining witnesses, the principal told her she did not have the right to do so.

After meeting with the principal, D.D. and his mother proceeded to the superintendent’s office to discuss the suspension.  The superintendent informed them that they had a right to question the complaining witnesses and that the principal would provide them with a letter explaining their rights.  D.D. and his mother then returned to the principal’s office and were given a letter notifying them of the principal’s decision to suspend D.D. for five days (January 27 through February 2, 2006).  The letter set forth the charges against D.D. and explained petitioners’ right to an informal conference with the principal at which they could question complaining witnesses.

By letter from the superintendent dated January 27, 2006, petitioners were advised that a superintendent’s hearing would be held on February 1, 2006.

On January 31, 2006, petitioners and D.D. participated in an informal conference with the principal and the assistant principal.  The parties have submitted differing records of this meeting.  However, both records indicate that a substitute teacher who witnessed the food fight stated that he saw D.D. throwing food on January 26, 2006.  Both records also reveal that a student witness was questioned and stated that during the lunch period on January 26, 2006, D.D. asked him to “talk to” or “distract the sub” so that “we can start a food fight.”  The student also stated that D.D. did not start the food fight.

At the superintendent’s hearing on February 1, 2006, D.D. pled not guilty to the charges of “inciting and executing” the January 26, 2006 food fight.  Respondents introduced the testimony of the student and substitute teacher who were questioned at the informal conference.  Petitioners introduced the testimony of 11 student witnesses, each of whom stated that D.D. did not start the food fight.  Based on this evidence, the superintendent found that while D.D. was not guilty of “initiating” the food fight, he was guilty of “executing” the food fight.  During the penalty phase of the hearing, the principal submitted anecdotal evidence, which indicated that D.D. had been involved in several prior cafeteria and classroom disturbances.

By letter dated February 2, 2006, the superintendent affirmed D.D.’s five-day suspension and further placed him on “lunch detention” until March 10, 2006.  The superintendent ordered that mention of “inciting” the January 26, 2006 food fight be expunged from D.D.’s disciplinary record.

Petitioners claim that they appealed the superintendent’s decision at a meeting with the board on February 9, 2006.  A letter dated February 17, 2006 from the board president and superintendent stated that the board “supports the discipline, and believes you also acknowledged it was fair.”  This appeal ensued.

Petitioners claim that the written suspension notice was received after the principal imposed D.D.’s suspension in violation of Education Law §3214 and §100.2(d) of the Commissioner’s regulations.  Petitioners also maintain that the suspension was excessive.  Petitioners request that respondents rescind D.D.’s suspension and expunge from his record any reference to the incident.  Petitioners also contend that respondents denied their request to correct D.D.’s anecdotal record.  Finally, petitioners request that the Commissioner investigate respondents’ disciplinary practices.

Respondents contend that petitioners fail to state a claim upon which relief can be granted, that their actions were not arbitrary or capricious and that any procedural irregularity in the principal’s suspension was cured by the superintendent’s hearing.  Respondents also raise several procedural defenses, including failure to exhaust administrative remedies, improper service, untimeliness, and mootness.

I must first address the procedural issues.  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).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondents maintain that the appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.  Pleadings may be served by any person not a party to the appeal over the age of 18 (8 NYCRR §275.8[a]).

In this case, petitioners attempted to commence an appeal on respondent board by petition dated March 13, 2006.  By letter dated March 22, 2006, my Office of Counsel returned the appeal to petitioners for lack of proper notice and gave petitioners two weeks (14 days) to correct the deficiency and re-serve the petition.  The affidavit of service that accompanied this appeal indicates that D.D.’s mother, a party to this appeal, served the board by mail on April 6, 2006.  In their reply, petitioners explain that their affidavit of service was in error and that the petition was in fact served by a third party.  They also explain that they misunderstood that the petition needed to be served by April 5, 2006 and that it needed to be served in person.  However, §275.8(a) of the Commissioner’s regulations states that a petition must be personally served.  Therefore, the appeal must be dismissed as against the board for improper service.

As to the principal, the appeal must be dismissed as untimely.  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).  Petitioners first served the principal on April 6, 2006, more than 30 days after all events involved in this appeal.  Therefore, as to respondent principal, the appeal is untimely. 

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Petitioners claim that the principal violated the Education Law and Commissioner’s regulations by not providing them with written notice until after D.D. was suspended.  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).

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension  (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

The food fight which resulted in D.D.’s suspension occurred on January 26, 2006.  Early the next morning, the principal telephoned petitioners to request that they meet with her that day to discuss the incident.  The record also indicates that, in addition to meeting with the principal and superintendent on January 27, 2006 to discuss D.D.’s suspension, petitioners were provided with a copy of D.D.’s disciplinary report and a letter from the principal setting forth the reason for D.D.’s suspension and explaining petitioners’ right to an informal conference.  Based on the record before me, I find that petitioners were provided with written notice of D.D.’s short-term suspension by personal delivery within 24 hours of the decision to impose suspension.

I also reject petitioners’ claim that the suspension is excessive.  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).  In this case, a substitute teacher who witnessed the January 26, 2006 incident testified that he saw D.D. throw food.  As a result of his participation in the food fight, D.D. was charged with endangering the health and safety of others, a serious infraction.  D.D.’s record indicates that he has been disciplined at school for several other infractions.  Based on this evidence, a suspension of five days and “lunch detention” is not excessive.

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

THE APPEAL IS DISMISSED.

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