Appeal of G.H.L., on behalf of G.J.L., from action of the Board of Education of the Brewster Central School District regarding student discipline.

Decision No. 15,598

(June 28, 2007)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Judith Mayle, Esq., of counsel

AHEARN, Acting Commissioner.-Petitioner appeals the decision of the Board of Education of the Brewster Central School District (“respondent”) to suspend his son, G.J.L.  The appeal must be dismissed.

Petitioner and his former wife have joint legal custody of G.J.L., with the mother having physical custody.  G.J.L. is a student at respondent’s high school and a member of the high school hockey team.

On November 3, 2006, G.J.L. forged his name on a school pass and was assigned to serve after-school detention on November 15, 2006.  Because G.J.L. failed to report to detention, he was assigned to serve extended detention on November 29, 2006.  On November 29, 2006, G.J.L. failed to report to detention.  As a result, the assistant principal recommended to the principal that G.J.L. serve a two-day in-school suspension.

Petitioner claims that on December 2, 2006, G.J.L.’s mother called the assistant principal on another matter and was informed of the two-day in-school suspension.  Respondent contends that the assistant principal left messages for both parents regarding the suspension.

On December 3, 2006, petitioner emailed the assistant principal requesting that the suspension be postponed until the school notified him in accordance with school policy and he had an opportunity to request a hearing.

By email dated December 5, 2006, petitioner again objected to not receiving notice or an opportunity for a hearing.  He also requested the same access as his former wife to G.J.L.’s educational records.

On December 12, 2006, petitioner received a letter from the principal, dated December 7, 2006, informing him that G.J.L. had been assigned to serve two days of in-school suspension on December 4 and December 6, 2006 for missing extended detention.  This letter also notified petitioner that he could contact the principal to discuss the matter.

In accordance with the district’s Code of Ethics for Athletes (“Code of Ethics”), because of his in-school suspension, G.J.L. was referred to the Athletic Fairness Committee (“the Committee”).  A hearing was held on December 11, 2006, at which both G.J.L. and the assistant principal testified.   At the hearing, G.J.L. did not deny that he skipped extended detention.  The Committee found him guilty of violating the Code of Ethics and suspended him for two games.  Petitioner sent an email to the high school hockey coach, objecting to the two-game suspension.

On December 15, 2006, petitioner received an email from the high school principal in response to his request for access to G.J.L.’s educational information.  The principal explained that the school would share information with a noncustodial parent absent any prohibition in a separation agreement or divorce decree. The email noted that the school did not have a copy of petitioner’s separation or divorce papers and asked that they be forwarded.

This appeal ensued.  Petitioner’s request for interim relief was denied on January 5, 2007.

Petitioner claims that respondent denied him access to his son’s educational records in violation of his rights as a joint custodial parent and under the Family Education Rights and Privacy Act (“FERPA”).  Petitioner also alleges that respondent failed to provide timely written notice of G.J.L.’s suspension.  Petitioner argues that both the in-school and athletic suspensions were excessive and requests that they be expunged from G.J.L.’s record.

Respondent claims that the suspensions were proper.  Respondent also maintains that the Commissioner lacks jurisdiction to consider petitioner’s FERPA claim and that the appeal should be dismissed for failure to join a necessary party.

Initially, I must address petitioner’s reply.  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.

Respondent contends that the appeal should be dismissed for failure to join G.J.L.’s mother as a party to the appeal.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  There is no indication that providing petitioner access to his son’s records would in any way affect G.J.L.’s mother’s rights.  Therefore, I need not dismiss the appeal for failure to join a necessary party.

The Commissioner lacks jurisdiction to consider FERPA claims.   The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Application of T.D., 41 Ed Dept Rep 157, Decision No. 14,646; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of Tucker, 39 id. 824, Decision No. 14,393).  To the extent that petitioner requests access to his child's records, this is a FERPA issue over which the Commissioner lacks jurisdiction. 

However, I note that petitioner claims that he is not allowed the same access to information regarding his son as the child’s mother.  The record indicates that the high school principal is willing to provide such access unless prohibited by a separation agreement or divorce decree.  I therefore urge petitioner to provide the requested agreement and/or decree and encourage respondent to work with petitioner to provide any information to which he may be entitled.

In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794; Appeal of Denis, 40 id. 306, Decision No. 14,487; Appeal of Michael J.A., 39 id. 501, Decision No. 14,293).

Petitioner acknowledges that on December 6, 2006, he discussed the suspension with the assistant principal over the telephone.  Moreover, petitioner received a letter in the mail from the principal notifying him of G.J.L.’s suspension and inviting him to contact the principal to discuss the matter.  Petitioner also admits that on December 13, 2006, the principal left petitioner a voicemail inviting him to discuss the issue.  Finally, petitioner received an email from the principal dated December 15, 2006, regarding the suspension and petitioner’s access to G.J.L.’s educational records and again inviting petitioner to call him to discuss the matter.  Accordingly, I conclude on the record before me that petitioner was afforded adequate due process.

I also reject petitioner’s claim that G.J.L.’s in-school and athletic suspensions were excessive.  An affidavit from the principal states that G.J.L. admitted to forging his name to a school pass, which is the conduct underlying the original and the extended detention.  Petitioner does not deny that G.J.L. failed to attend his assigned detentions.  According to respondent’s Student Handbook, which is provided to all students at the start of each school year, failure to report to extended detention can result in “two days of In-School Suspension.”

As for G.J.L.’s athletic suspension, G.J.L. read and signed the Code of Ethics, which explained that students who receive in-school suspension for breaking school rules would be referred to the Athletic Fairness Committee.  Based on the record before me, I find no basis to overturn either suspension.

THE APPEAL IS DISMISSED.

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