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Decision No. 16,015

Appeal of K.M., on behalf of his daughter K.S., from action of the Board of Education of the Farmingdale Union Free School District regarding student discipline.

Appeal of M.H., on behalf of her granddaughter K.S., from action of the Board of Education of the Farmingdale Union Free School District regarding student discipline.

Decision No. 16,015

(February 6, 2010)

Guercio & Guercio, attorneys for respondent, Randy Glasser and Kelly A. Reape, Esqs., of counsel

STEINER, Commissioner.--Petitioners appeal the actions of the Board of Education of the Farmingdale Union Free School District (“respondent”) regarding disciplinary actions taken against K.S.  Because the appeals arise from the same set of facts and seek similar relief, they are consolidated for decision.  The Appeal of M.H. must be dismissed and Appeal of K.M. must be sustained in part.

During the 2007-2008 school year, K.S. attended respondent’s middle school.  On several occasions K.S. received disciplinary referral reports for alleged misconduct and on at least three occasions she was removed from class by three different teachers due to alleged disruptive behavior.  These appeals ensued.  Petitioner M.H. is the student’s grandmother.  Petitioner K.M. is the student’s father.

Petitioners claim that respondent’s actions violated due process.  Petitioner M.H. also contends that K.S was subjected to discrimination and racism.  Respondent asserts, among other things, that M.H. does not have standing to appeal.  Respondent asserts that K.M’s appeal must be dismissed as moot, for failure to exhaust administrative remedies, and for failure to establish a clear right to the relief requested. With regard to the merits, respondent maintains that its actions were fair and consistent with law and district policy.

The Appeal of M.H. must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Samuel, 45 id. 418, Decision No. 15,371; Appeal of Hubbard, 45 id. 266, Decision No. 15,316).  In her petition, M.H. submitted a power-of-attorney purporting to give her guardianship over K.S.  However, respondent asserts, and M.H. does not refute, that M.H. is not K.S.’s legal guardian.  Title 15-A of the General Obligations Law provides a mechanism by which a parent may designate a person to act as a person in parental relation to a child with respect to the Education Law.  Because M.H. did not provide a designation form consistent with the requirements contained within the General Obligations Law, and has otherwise failed to establish any legal standing to represent her granddaughter’s interests, M.H.’s appeal must be dismissed.

With respect to the Appeal of K.M., respondent asserts that because the law and its code of conduct provide a parent with the opportunity to meet with its principal to discuss the reasons for the removal, and respondent’s principal has made himself available for such a meeting, K.M. has failed to exhaust his administrative remedies.  However, there is no explicit language in Education Law §3214(3-a) requiring exhaustion when a teacher removes a disruptive student.  Similarly, there is no evidence in the record that respondent’s code of conduct imposes an exhaustion requirement under these circumstances (seeAppeal of Amara S., 39 Ed Dept Rep 90, Decision No. 14,182).  Accordingly, I decline to dismiss the appeal on that basis.

Respondent also argues that the appeal should be dismissed as moot. 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).  K.S. has already served the class removal at issue in the K.M. appeal, and according to respondent, it is not part of her permanent record.  However, according to respondent, its code of conduct permits classroom teachers to remove a disruptive student for up to two days.  Given the limited duration of teacher removals, I find that a challenge to the due process afforded under such circumstances is "capable of repetition, yet evading review" (Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 US 498, 515) and therefore is justiciable.

I find that respondent failed to comply with Education Law §3214(3-a) with respect to K.S.’s removal on March 13, 2008.  Education Law §3214(3-a)(b) requires that the principal, or a designated school district administrator, inform the parent of the removal and the reasons therefore within 24 hours of the removal.  The law also provides that the student and the parent shall, upon request, be given an opportunity for an informal conference within 48 hours of the removal with the principal to discuss the reasons for the removal.  If the student denies the charges, the principal is required to provide an explanation of the basis for the removal and allow the parent and the student to present the student’s version of the events.  The principal is authorized to set aside the removal under certain circumstances.

In K.M.’s appeal, only the substitute teacher, not the principal, informed petitioner by letter of the removal and offered the student and the parent the opportunity for an informal conference with the teacher, not the principal.  There is no evidence in the record that respondent’s principal satisfied the additional requirements contained in Education Law §3214(3-a)(b).  It appears that it was not until after petitioner M.H. called respondent’s principal on March 17, 2008 that he, through his secretary, offered to meet to discuss the March 13, 2008 removal.  Accordingly, respondent must review and revise its teacher removal polices and procedures to ensure compliance with law. 

To the extent that petitioner K.M. seeks relief with respect to respondent’s failure to provide a meeting with the substitute teacher involved in the March 13, 2008 removal, I find that because the removal has been served and respondent indicates it is not part of K.S.’s record, no further meaningful relief can be afforded.  However, although a meeting with the teacher is not required by law, should respondent retain that aspect of its policy, it should follow such policy.   

THE APPEAL OF M.H.IS DISMISSED.

THE APPEAL OF K.M. IS SUSTAINED TO THE EXTENT INDICATED.  

IT IS ORDERED that the Farmingdale Union Free School District hereafter comply with the provisions of Education Law §3214(3-a) and revise its policies and procedures accordingly.

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