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Decision No. 16,434

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Liverpool Central School District regarding student discipline.

Decision No. 16,434

(December 3, 2012)

Bond, Schoeneck & King, PLLC, attorneys for respondent, David M. Ferrara and John A. Miller, Esqs., of counsel

KING, JR., Commissioner.--Petitioners appeal the suspension of their son (“the student”) by the Board of Education of the Liverpool Central School District (“respondent”).  The appeal must be sustained in part.

During the 2009-2010 school year, the student was a sophomore at respondent’s high school.  On June 8, 2010, he allegedly violated respondent’s code of conduct by having sexual contact with another student on school grounds.  The student was suspended for five days from June 9 through June 15, 2010. 

At the superintendent’s hearing held on June 15, 2010, the student admitted to the charged conduct.  By memorandum dated June 15, 2010, the hearing officer notified the superintendent of his determination that the student was guilty of the conduct charged and his recommendation that the student be suspended from school until January 24, 2011. 

By letter dated August 16, 2010, the superintendent notified petitioners that he adopted the hearing officer’s findings of fact and recommendation as to penalty.  The superintendent further indicated that petitioners could ask at the completion of marking period one that the student’s behavior and academic progress be evaluated by the hearing officer for purposes of considering modifying the suspension and reinstating the student at respondent’s high school for marking period two. 

On August 25, 2010, petitioners appealed the superintendent’s decision to respondent.  Respondent’s Section 504 committee met on September 16, 2010 and determined that the student’s behavior was not a manifestation of his disability.  By letter dated September 28, 2010, respondent upheld the suspension. This appeal ensued.

While suspended, the student received alternative instruction at a Board of Cooperative Educational Services Alternative to Homebound Program.  Respondent discontinued the suspension and permitted the student to return to his regular high school program on November 8, 2010.    

Petitioners argue, among other things, that the suspension was excessive. Petitioners also claim that respondent’s delay in informing them of the final decision was unlawful.  Petitioners further argue that the hearing officer wilfully neglected his duty as a “fair and impartial hearing officer” and that he used improper information against the student in his recommended penalty.  Petitioners submit that the audiotape and transcript of the hearing are inaccurate. Petitioners assert that their son is a student with a disability who has a Section 504 Plan and that respondent violated the law and district policy by imposing a penalty prior to making a manifestation determination. Finally, petitioners contend that respondent’s answer was untimely. 

Petitioners seek an order overturning the suspension and expunging the student’s record.  They further ask that I consider appropriate disciplinary repercussions against the hearing officer and the district and that the district receive training regarding student disciplinary matters. Petitioners further ask that I review the laws pertaining to the discipline of students with disabilities and assert that such students need more, not less, academic and social interaction and instruction.

Respondent contends that the appeal is moot, that the petition fails to state a claim upon which relief may be granted and that the petition should be dismissed because the Commissioner does not issue advisory opinions in appeals brought pursuant to Education Law §310.  Respondent contends that its answer was timely and that certain portions of petitioners’ reply should not be considered.

I must first address several procedural issues.  Petitioners assert that respondent’s answer was untimely.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  The date upon which personal service was made upon a respondent shall be excluded in the computation of the 20-day period (8 NYCRR §275.13).  When the 20-day period ends on a Saturday, Sunday or public holiday, the answer may be served on the next succeeding business day (8 NYCRR §275.8[b]).  In this appeal, the petition was served on October 25, 2010.  The 20-day period ended on Sunday, November 14, 2010.  The answer was served on Monday, November 15, 2010.  Accordingly, the answer is timely.

Respondent objects to petitioners’ 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.  However, I disagree with respondent’s assertion that petitioners sought expungement for the first time in their reply.  In paragraph 92 of the petition, petitioners clearly request that the suspension be expunged from the student’s record.

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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  To the extent petitioners seek relief against the hearing officer in this appeal, the appeal is dismissed as to him for failing to join him as a necessary party.

To the extent petitioners attempt to challenge any disciplinary action taken by respondent against their son with respect to an incident that occurred while he was in ninth grade, the appeal is 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioners appear to assert that they thought the district had expunged their son’s record with respect to this incident and that they were not aware that they needed to file an appeal regarding the same. Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821). 

To the extent that petitioners request access to and revision of the student’s records with respect to the incident that occurred while he was in ninth grade, this is a Family Educational Rights and Privacy Act (“FERPA”) issue over which the Commissioner lacks jurisdiction.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 USC §1232[g]; 34 CFR Part 99; Appeal of M.Z., 50 Ed Dept Rep, Decision No. 16,243; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The student served the suspension and returned to school on November 8, 2010.  Therefore, except to the extent that petitioners seek expungement of the student’s record, the appeal must be dismissed as moot.  Similarly, the appeal is also moot to the extent that petitioners request relief on their claim that respondent failed to provide their son with adequate alternative education during the suspension period (Appeal of C.M., 50 Ed Dept Rep, Decision No. 16,142; Appeal of D.C., 41 id. 277, Decision No. 14,684; Appeal of Harlan, 40 id. 309, Decision No. 14,488).

I reject petitioners’ assertion that respondent violated the law by failing to render a decision within 45 days.  That requirement applies to a decision by an impartial hearing officer in a special education due process hearing, not to student disciplinary proceedings pursuant to Education Law §3214 (8 NYCRR §200.5[j][5]).

While a delay in rendering a decision in a student disciplinary proceeding is not a basis for overturning a suspension in its entirety, a student’s exclusion from school after the hearing and prior to the issuance of a disposition determination is improper (seeAppeal of L.P., 50 Ed Dept Rep, Decision No. 16,252; Appeal of V.C., 45 id. 571, Decision No. 15,419).  As stated above, the student was initially suspended from June 9 – June 15, 2010.  The superintendent’s hearing was held on June 15, 2010; however, no determination was issued until August 16, 2010.  It appears from the record that school was still in session for exam purposes after June 15, 2010 and that the student was permitted to sit for his exams. I disagree with respondent’s contention that “inasmuch as the academic year was nearly finished and summer recess was ensuing, time was not of the essence for the issuance of an immediate decision by the Superintendent following the June 15 Superintendent’s hearing.”  Accordingly, to the extent that the student’s record reflects a suspension after June 15, 2010 until the issuance of the superintendent’s determination on August 16, 2010, such suspension must be expunged from the student’s record (Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,252; Appeal of V.C., 45 id. 571, Decision No. 15,419). 

Respondent concedes that one reason for the delay in issuing the superintendent’s decision was because the superintendent was waiting for information regarding the disposition of a police investigation.  Respondent asserts that such information was not going to be used for purposes of lengthening the suspension, but rather to determine whether the option of the student returning to school prior to the expiration of the suspension was viable.  This was improper.  Discipline imposed pursuant to Education Law §3214(3)(c) must be based upon the evidence contained in the record produced at the superintendent’s hearing (seeAppeal of Snowberger, 24 Ed Dept Rep 256, Decision No. 11,386).  Materials outside the hearing record should not be considered by the superintendent in his determination on penalty (Appeal of Snowberger, 24 Ed Dept Rep 256, Decision No. 11,386).  In this case, however, there is no evidence that it impacted the penalty imposed and, therefore, I find the error to be deminimus.  However, I remind respondent to ensure that determinations in future student disciplinary proceedings are based on properly introduced and accepted evidence. 

Petitioners further claim that the hearing officer also acted improperly regarding the police investigation and his recommended penalty.  However, the hearing was held on June 15, 2010 and his memorandum to the superintendent with his recommendation as to penalty is dated that same date.  Therefore, I cannot find that the hearing officer’s recommendation was in any way impacted by information subsequently received regarding the police investigation as petitioners suggest.

Petitioners contend that the hearing transcript and audiotape provided by respondent are inaccurate.  Respondent concedes that the transcript contained errors but that the errors are not substantive and that the transcript is substantially complete.[1] An intelligible record of the hearing must be maintained in order to permit a meaningful review (Education Law §3214[3][c]; Appeal of A.G., 41 Ed Dept Rep 262, Decision No. 14,681).  Although the transcript provided to petitioners was inaccurate and petitioners maintain that the audiotape provided is also incomplete, petitioners fail to articulate how any of the alleged deficiencies might have mitigated against the finding of guilt or the penalty imposed.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Absent any such evidence, I decline to overturn respondent’s determination on this ground (Appeal of A.G., 41 Ed Dept Rep 262, Decision No. 14,681).  I remind respondent, however, of its obligation to maintain a record of the hearing in accordance with Education Law §3214(3)(c).

To the extent petitioners contend that respondent violated §504 of the Rehabilitation Act, petitioners’ appeal must be dismissed for lack of jurisdiction.  Enforcement of Section 504 of the Rehabilitation Act of 1973 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 51 Ed Dept Rep, Decision No. 16,258; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425).[2]  However, petitioners contend, and respondent concedes, that respondent violated its own code of conduct by failing to conduct a timely manifestation determination.  Accordingly, the penalty imposed prior to the manifestation determination on September 16, 2010 must be expunged from the student’s record.   

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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897). 

As stated above, 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

There is no dispute that the student had sex with his girlfriend on school grounds which violated respondent’s code of conduct.  While the incident occurred after school hours, it occurred outside on school grounds and in public view during daylight hours.  In fact, neighbors of the school witnessed the incident and reported it to school officials. Petitioners argue that the penalty is excessive because the student’s girlfriend received a less severe disciplinary penalty.  I find that petitioners have failed to meet their burden of proving that the imposition of a five-month suspension, which could be shortened to a one marking period suspension based on the student’s behavior and academic progress in the alternative education placement, is so excessive as to warrant substitution of my judgment for that of respondent (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849).  Moreover, the records of the other student are not before me. The fact that the other student involved in the incident may have received a lesser penalty does not, in and of itself, provide a basis for nullifying the discipline imposed on petitioners’ son, provided that, as here, the record establishes that he engaged in the misconduct and the penalty imposed is appropriate (Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242).

Petitioners assert that the hearing officer wilfully neglected his duty as a “fair and impartial hearing officer.”  Petitioners cite to a number of alleged improper actions on the part of the hearing officer, including his prior involvement in a student disciplinary proceeding involving their other son in which petitioners filed a complaint with the New York State Education Department.  The record indicates that as a result of that complaint, respondent was required to undergo certain corrective actions pertaining to disciplining students with disabilities.  Given that petitioners’ son admitted to the charged conduct in this case, I do not find any evidence of misconduct or bias in this record that would warrant annulment of the suspension.

Petitioners also argue that the hearing officer improperly considered records pertaining to a disciplinary incident involving their son in the ninth grade.  Respondent does not clearly refute that the hearing officer considered the prior incident in his recommended penalty.  Instead, respondent contends that the hearing officer made no determination regarding the student’s punishment and that the prior incident played no role in the superintendent’s determination on penalty.  The record contradicts respondent’s contentions.  The hearing officer’s decision states that the penalty was based on “the finding cited above and the totality of the academic and discipline record.” It thus appears that the student’s anecdotal record, which presumably contained information regarding the prior incident, was considered by the hearing officer in the imposition of his recommended penalty.  The superintendent’s decision states “I adopt the Hearing Officer’s findings of fact and concur with his recommendations as to penalty.”  Accordingly, while the superintendent may not have personally reviewed the student’s anecdotal record, it appears from the record that the hearing officer did so in his recommended penalty which was then adopted by the superintendent.  The June 9, 2010 letter to petitioners notifying them of the superintendent’s hearing indicates that a copy of the student’s anecdotal record, if one exists, was enclosed and would be available for consideration by the hearing officer.  However, there is nothing in the record indicating that the student’s anecdotal record was in fact submitted as evidence at the hearing and there was no discussion of it at all at the hearing. 

It is well settled that a student’s anecdotal record may be received into evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 253, Decision No. 14,678).  As such, I find that, because the record indicates that the student’s anecdotal record was not properly received into evidence at the hearing, respondent improperly considered such record for purposes of determining the appropriate penalty (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 253, Decision No. 14,678).  I remind respondent to adhere to the proper procedures regarding the review of anecdotal records in the future (Appeal of a Student Suspected of Having a Disability, 46 Ed Dept Rep 453, Decision No. 15,562; Appeal of a Student Suspected of Having a Disability, 41 id. 253, Decision No. 14,678).

However, even excluding the student’s anecdotal record, I do not find the penalty excessive.  As stated above, in cases of suspension, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 253, Decision No. 14,678).  I find that the penalty, although severe, is not irrational or unreasonable, given the nature of the student’s conduct, and is within respondent’s discretion.  However, given the errors in the disciplinary process cited above, I admonish respondent to review and revise its discipline policies and procedures to ensure compliance with all applicable laws and regulations in the future.

I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the student’s records any reference to the suspension from June 16, 2010 through the end of the 2009-2010 school year and from the beginning of the 2010-2011 school year through September 16, 2010.

END OF FILE.

[1] I note that the revised copy of the transcript provided by respondent’s counsel is also inaccurate.

[2] The Office for Civil Rights of the United States Department of Education (“OCR”) has stated that students with disabilities may not be punished or disciplined for behavior that is caused by or is a manifestation of their disabilities.  OCR has interpreted Section 504 as requiring a manifestation determination in connection with disciplinary actions that constitute a significant change in placement under 34 C.F.R. §104.35 (more than 10 cumulative days during a school year(see, http://www2.ed.gov/documents/news/section-504.pdf).