Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Southern Westchester Board of Cooperative Educational Services, Ronald L. Smalls, Dr. Frances Meyer, Marilynn Pam and Dr. Kenneth Mann regarding student discipline.

Decision No. 15,608

(July 12, 2007)

Julie Gaughran, Esq., attorney for petitioner

Keane & Beane, P.C., attorneys for respondents, Aileen Noonan, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals actions of the Southern Westchester Board of Cooperative Educational Services (“BOCES”), Ronald L. Smalls, Dr. Frances Meyer, Marilynn Pam and Dr. Kenneth Mann (“respondents”) related to the suspension of her son.  The appeal must be sustained in part.

Petitioner’s son (“the student”) is emotionally disturbed and classified as a student with a disability by the City School District of the City of White Plains (“White Plains”).  During the 2005-2006 school year, the student was in eighth grade and attended the BOCES Therapeutic Support Program (“the program”) located at the Farragut Middle School in the Hastings-on-Hudson Union Free School District.  On June 2, 2006 at approximately 10:30 a.m., an incident occurred wherein it was alleged that the student stated that at or near the end of the school year, there would be a massacre.  The student was permitted to stay in school for the rest of the day in a time-out room.

Petitioner was made aware of the incident that afternoon at 1:30 p.m. by Dr. Kenneth Mann, a BOCES school psychologist, and was told that the student would probably be suspended.  That evening at 5:15 p.m., Marilynn Pam, the program supervisor, decided that a two-day suspension would be imposed beginning the next school day, Monday, June 5, 2006.  A voice message was then left on petitioner’s work phone by the school psychologist, informing her of the suspension.  By letter dated June 2, 2006, Ms. Pam informed petitioner that the student would be suspended for two days (June 5 and 6, 2006).  The letter was sent by regular mail on June 5, 2006 and received by petitioner on June 6, 2006 at 4:00 p.m.

On Monday morning, June 5, 2006, petitioner hand delivered a letter to Dr. Mann objecting to the lack of due process.  This appeal ensued.

Petitioner claims that the student was suspended without due process and requests that I order his suspension expunged from his record.  Petitioner also requests that I remind respondents and White Plains of their duties under the Education Law regarding short-term suspensions.  Additionally, petitioner seeks reimbursement of attorneys’ fees and requests that I order White Plains to cease consideration of the student’s participation in the program in the future.

Respondents contend that petitioner failed to name White Plains as a necessary party.  Respondents further contend that notice was given to petitioner in accordance with the requirements of Education Law §3214 and §100.2(l) of the Commissioner’s regulations and that the suspension was not harsh or excessive.  Finally, respondents request that I disregard petitioner’s reply because it sets forth additional facts and allegations not previously asserted.

Petitioner failed to name White Plains as a party to this appeal.  Respondents maintain this requires dismissal of the entire appeal.  I disagree.  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 D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  According to the record, the suspension in question was imposed and administered by the BOCES with no involvement by White Plains.  A decision to expunge the suspension from the student’s records, as petitioner requests, would not adversely affect White Plains.  Therefore, I need not dismiss the appeal for failure to join a necessary party.  However, to the extent petitioner requests other forms of relief affecting White Plains, such as the student’s future placement, her claims must be dismissed.

The appeal must be dismissed against Ronald L. Smalls, Dr. Frances Meyer, Marilynn Pam and Dr. Kenneth Mann for lack of personal jurisdiction.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  No documentation was submitted to indicate that the above-named respondents were personally served with the petition.  The affidavit of service only addresses service on the BOCES.  Accordingly, the appeal must be dismissed against all of the respondents except the BOCES.

Respondents also request that I disregard petitioner’s reply because 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 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 or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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).

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).  Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of R.F., 43 id. 206, Decision No. 14,972). 

The BOCES did not comply with these mandates in several respects.  Except in the case in which a student’s presence in the school is considered a continuing danger or an ongoing threat of disruption to the academic process, written notice and an opportunity for an informal conference must be provided prior to the suspension.  The record reflects that the BOCES school psychologist notified petitioner of the student’s suspension by telephone message on Friday, June 2, 2006, after 5:00 p.m.  On June 5, 2006, the program supervisor sent a letter by regular mail notifying petitioner of the student’s suspension.  Thus, written notice was not provided prior to the suspension.

Furthermore, it does not appear, nor does the BOCES argue, that the student’s presence in the school was considered a continuing danger or an ongoing threat of disruption (in which case the notice and opportunity for an informal conference would have had to take place as soon after the suspension as was reasonably practicable).  In fact, the record indicates that the student was allowed to remain in the school on the day of the incident.

Moreover, the BOCES did not provide an informal conference nor did the written notice inform the parents of their right to an informal conference.  Thus, the student’s suspension from June 5 through June 6, 2006 must be annulled and expunged from his record (Appeal of a Student Suspected of Having a Disability, 45 Ed Dept Rep 483, Decision No. 15,388;Appeal of a Student With a Disability, 44 id. 136, Decision No. 15,124).

With respect to petitioner’s 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).

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 the suspension of petitioner’s son from June 5 through June 6, 2006, be annulled and expunged from his record.

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