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Decision No. 16,053

Appeal of C.P., on behalf of his son A.P., from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding student discipline.

Decision No. 16,053

(April 8, 2010)

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Katonah-Lewisboro Union Free School District (“respondent”) to uphold the suspension of his son, A.P.  The appeal must be dismissed.

At all times relevant to this appeal, A.P. was a student at respondent’s John Jay High School (“John Jay” or “high school”).  On December 22, 2008, A.P. was involved in an altercation with another student.  John Jay’s assistant principal notified petitioner and his wife by telephone that A.P. would be suspended for three days.  Upon picking A.P. up from school, petitioner’s wife received a letter signed by the principal which, among other things, noted that A.P. had been suspended for three days (December 22 and 23, 2008 and January 5, 2009), that A.P.’s conduct posed an “on-going threat of disruption to the academic process” and that an informal conference with the principal at which questions could be asked of complaining witnesses was available upon request.

On January 5, 2009, petitioner and his wife met with the principal to discuss A.P.’s suspension, which was upheld.[1] Thereafter, petitioner appealed both to respondent’s superintendent and respondent; both appeals were denied.  This appeal ensued.

Petitioner argues that A.P. was improperly suspended from school without first being given an opportunity for an informal conference.  Specifically, petitioner contends that respondent has a “no tolerance policy” pursuant to which students involved in a fight are suspended without first having an opportunity for an informal conference.  Petitioner argues that A.P. was immediately suspended from school as a result of this policy, and that the policy, as applied to him, violates the due process requirements of the Education Law.  Petitioner asks that I reject respondent’s “interpretation of the Education Law” and that A.P.’s suspension be expunged.  Petitioner also requests that I order respondent to disclose its “no tolerance policy” and that I review the policy for legal sufficiency.

Respondent denies having a “no tolerance policy” and claims that it complied with all legal and regulatory requirements with respect to A.P.’s suspension.  In addition, respondent contends that petitioner, among other things, fails to state a claim upon which relief can be granted, and that petitioner raises arguments in his petition that were not raised to its superintendent.

I must first address a number of 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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  A reply may also not be used to raise new issues or seek new relief (seee.g.Appeal of Wells, 35 id. 367, Decision No. 13,573; Appeal of Hickland, 32 id. 599, Decision No. 12,926).  Accordingly, those portions of petitioner’s reply which raise new issues or seek new relief must be disregarded.

Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  I therefore decline to consider unsworn factual assertions included in respondent’s memorandum of law.

In addition, petitioner requested permission to submit a “reply memorandum of law.”  Reply memoranda of law may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4; Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of Dunshee, 44 id. 414, Decision No. 15,216).  However, a reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Kirschenbaum, 43 Ed Dept Rep 366, Decision No. 15,020; Appeal of T.M., 41 id. 443, Decision No. 14,740; Appeal of Muench, 38 id. 649, Decision No. 14,110).  Here, petitioner contends that I should accept his reply memorandum of law because it addresses matters cited by respondent and new issues raised in its memorandum of law.  However, since petitioner had an opportunity to submit a memorandum of law after the service of respondent’s answer, and further, since I have not considered those portions of respondent’s memorandum of law which are improper, I have reviewed, but decline to consider, petitioner’s reply memorandum of law.

Respondent contends that petitioner’s appeal raises issues not raised to its superintendent.  However, petitioner’s appeal letter to the superintendent clearly challenged the lack of an opportunity to meet with the high school principal prior to A.P.’s suspension.  As this is the essence of petitioner’s appeal, I decline to dismiss it for this reason.

Turning 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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).  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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).

It is undisputed that written notice of A.P.’s suspension was hand-delivered to petitioner’s wife on December 22, 2008, the first day of A.P.’s suspension.  The question, therefore, is whether A.P. posed a “continuing danger to persons or property or an ongoing threat of disruption to the academic process” such that the notice and opportunity for an informal conference could take place as soon after the suspension as was reasonably practicable, rather than prior to the suspension (Education Law §3214[3][b][1]).

Petitioner contends that respondent’s personnel never made a determination that A.P.’s presence in school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  Instead, petitioner argues, respondent mechanically applied a “no tolerance policy” to A.P whereby students who fight are automatically deemed to be a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  In support of this contention, petitioner cites to a letter from respondent’s superintendent indicating that it was the district’s opinion that “due to [A.P.’s] involvement in the [altercation] his presence in the school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process.”  Petitioner also points out that this same letter indicates that “John Jay High School has a no tolerance policy for any type of physical altercation between students.”

As an initial matter, I am unable to find on the record before me that respondent has adopted a “no tolerance policy” of the type described by petitioner. While respondent’s superintendent does indicate in his letter that John Jay “has a no tolerance policy for any type of physical altercation between students,” this alone is not evidence of a policy that requires the immediate suspension of students involved in a fight.  Moreover, respondent expressly denies having such a policy.  According, I am unable to find that a no tolerance policy requiring immediate suspension exists or was mechanically applied to A.P.

Nor am I able to find that respondent failed to make a determination that A.P.’s presence in school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  In addition to advising petitioner and his wife that A.P. would be suspended for three days as a result of his involvement in an altercation, the December 22, 2008 letter that was hand delivered to petitioner’s wife indicates that “[A.P.’s] conduct poses an on-going threat of disruption to the academic process.”  Accordingly, it appears from the record that such a determination was made.

Petitioner argues that the record in this matter does not support the conclusion that A.P.’s presence in school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  However, 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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  On the record before me, I find that petitioner has failed to meet this burden.

The principal indicates that the nature and severity of the altercation and the fact that the dispute “spilled over” from a dispute over money that arose outside of school, led her to decide that A.P. should be suspended immediately.  While petitioner argues that the principal did not learn that A.P.’s dispute was about money until after the suspension was ordered (and thus disputes that this was the basis of her decision), I am unable to determine from the record before me that this was in fact the case.  Moreover, while petitioner contends that A.P. and the other student met with a guidance counselor and were “good with each other” after the incident, there is no evidence in the record to support this or that indicates that, if true, this would have changed the principal’s determination.  Accordingly, on the record before me, I am unable to find that respondent’s immediate suspension of A.P. was arbitrary or capricious.

I have considered the parties’ remaining contentions and find that they lack merit.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] The record reflects that petitioner had other meetings with the principal, as well.  The sufficiency of these meetings is not challenged in the verified petition.