Appeal of A.V. and S.A.-V., on behalf of their son Y.V., from action of the Board of Education of the Jericho Union Free School District regarding student discipline.

Decision No. 16,528

(August 28, 2013)

Paul L. Dashefsky, Esq., attorney for petitioners

 Ingerman Smith, L.L.P., attorneys for respondent, Michael G. McAlvin, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal from a determination of the Board of Education of the Jericho Union Free School District (“respondent”) to suspend their son, Y.V., from school for six days. The appeal must be sustained in part.

Petitioners’ son attended ninth grade at Jericho High School in respondent’s district during the 2010-2011 school year. As a result of problems Y.V. experienced with his fellow students, including complaints of bullying, respondent’s staff took various actions, including investigating the complaints, peer mediation, admonishing and disciplining students, rearranging Y.V.’s classes and/or classroom seating and meeting with Y.V.’s parents and teachers. Ultimately, the principal assigned a teacher’s aide as a monitor to walk with Y.V. to document any incidents of harassment, as well as to assist in facilitating positive social opportunities for Y.V. The monitor eventually sat with Y.V. in his classes and on his bus.

According to the record, the principal told Y.V. that he was expected to walk with the monitor in school. By email to Y.V.’s parents, dated May 9, 2011, the principal reiterated his directive that Y.V. find the monitor each morning in the school’s lobby upon arrival at school and walk at a moderate pace next to the monitor in the hallway.

By letter dated May 24, 2011, the principal notified petitioners that Y.V. had engaged in the following misconduct:

•  Acting in an insubordinate manner by refusing to comply with my directive to walk at a leisurely pace with [the monitor] in the hallways repeatedly during May2011.
• Stating to another student on May13, 2011 in the presence of [the monitor] that [Y.V.’s] physical education teacher threatened to beat him up.
• tating to another student on May13, 2011 in the presence of [the monitor] that [Y.V.’s] English teacher threw a book at him.

The principal stated that he intended to suspend Y.V. forone day, commencing on May 26, 2011, and notified petitioners of their right to an informal conference prior to the suspension. Petitioners attended an informal conference with the principal on May 25, 2011. Subsequently, by letter of the same date, the principal notified petitioners of his determination that Y.V. had engaged in the conduct charged and was suspended for one day on May 26, 2011.

Thereafter, Y.V. was charged with four additional instances of misconduct and, after an informal conference with petitioners, by letter dated June 6, 2011, the principal found Y.V. guilty of the following:

•  On or about June 1, 2011, acting in an insubordinate manner by refusing to comply with my directive to locate [the monitor] upon [Y.V.’s] arrival in the morning.
•  On or about June 1, 2011, acting in an insubordinate manner by refusing to comply with a directive to put his phone away during PE class.
•  On or about June 1, 2011, acting in an insubordinate manner by refusing to comply with my directive to sit at the front of the bus in the afternoon.
•  On or about June 2, 2011,falsely accusing [the monitor]of causing [Y.V.] to fall down the stairs. 

As a result, Y.V. was suspended for five days, which were served on June 7, 8, 9, 15 and 16, 2011.

Petitioners appealed to respondent from the May 26,2011 one-day suspension and the subsequent five-day suspension. By letter dated July 6, 2011, respondent upheld both suspensions. This appeal ensued.

Petitioners challenge both suspensions, asserting that Y.V. should not have been found guilty of the charged conduct. They also contend that both the one-day suspension and the five-day suspension are excessive. As relief, petitioners seek an order requiring respondent to take effective action regarding the bullying that they allege Y.V. experienced and to cease using a “shadow” teacher’s aide with Y.V. They seek annulment of the suspensions and expungement of Y.V.’s records.

Respondent alleges that the appeal is untimely. Respondent also asserts that the discipline imposed on Y.V. was, in all respects, proper. Respondent maintains that petitioners have failed to state a claim and also have not established that respondent failed to abate any instances of bullying toward Y.V. Finally, respondent claims the appeal is moot because Y.V. no longer attends school in the district, and that petitioners improperly seek an advisory opinion.

I will first address several procedural matters. 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.

Next, respondent has applied to submit additional documentation pursuant to §276.5 of the Commissioner’s regulations. Specifically, respondent submits a determination by the U.S. Department of Education, Office of Civil Rights (“OCR”) dismissing a discrimination complaint filed by petitioners based upon the events set forth in this appeal. Because this appeal involves petitioners’ challenge to the appropriateness of two short­ term suspensions pursuant to Education Law §3214 and does not include any claims of discrimination, respondent’s application is denied, and the OCR determination has not been considered.

Respondent objects to certain videos allegedly posted on YouTube.com for which web links were purportedly sent to the State Education Department. Respondent contends that, to the extent such web links were sent in an effort to augment the record, such videos should not be considered. No such web links have been received in connection with this appeal.

With respect to respondent’s assertion that 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 (8NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457,Decision No. 15,914; Appeal of Williams, 48 id. 343,Decision No. 15,879).

To the extent petitioners challenge respondent’s alleged “failure to abate” instances of bullying toward Y.V., the last noted complaint referenced conduct by a student on January 24, 2011. This appeal was not initiated until August 1, 2011, well outside the required time period. Therefore, that portion of the appeal is untimely.

Petitioners’ appeal of the discipline imposed on Y.V., however, is timely. By letter dated July 6, 2011,respondent upheld both the one-day suspension and the five-day suspension. This appeal was commenced within 30 days of that determination and, thus, is timely as to those claims.

However, the appeal must be dismissed in part 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 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). Y.V. served both of the suspensions prior to the commencement of this appeal. Therefore, except to the extent that petitioners seek expungement of Y.V.’s record, petitioners’ request for an order annulling the suspensions must be dismissed as moot. Similarly, the record indicates that petitioners removed Y.V. from respondent’s district and enrolled him in a non-public school outside the district. Therefore, to the extent that

petitioners seek an order directing respondent to take certain actions in response to alleged bullying experienced by Y.V., the matter is also academic.

Turning to the merits of petitioners’ challenge to the short-term suspensions, the decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., etal., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of B.M.,48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48id. 89, Decision No. 15,800).

Petitioners contend that respondent erred in finding Y.V. had engaged in the misconduct charged in the principal’s May 24, 2011 letter. With respect to the charge that Y.V. refused to comply with a directive to walk at a leisurely pace with the monitor, petitioners first generally disagree with the appropriateness of assigning a monitor as respondent did in this instance. Petitioners further assert that there is no claim that Y.V. “ran or bolted to and from his classes at an excessive speed or ina hazardous manner.” They assert that it is “absurd” to subject a student to discipline for not walking at a leisurely pace. However, the record indicates that respondent’s staff was attempting to address Y.V.’s allegations of bullying by other students, and the assignment of a monitor was designed to address any instances of bullying, as well as to facilitate positive social opportunities for Y.V. According to the record, the principal directed Y.V. verbally and in an email to walk with the monitor. The principal avers in an affidavit –and petitioners provide no contrary evidence - that Y.V. “would continually attempt to evade and lose [the monitor]in and about the hallways” despite the principal’s directives. An affidavit from the monitor corroborates the principal’s assertion. Such behavior contravened the principal’s directive and undermined respondent’s attempts to address Y.V.’s complaints. Therefore, on this record, I will not overturn respondent’s finding that Y.V. engaged in the charged conduct.

However, I find that the record does not support the finding on the second charge, that Y.V. stated to another student on May 13, 2011 that his physical education teacher threatened to beat him up. A written statement by B.C., the student to which Y.V. allegedly made the statement,refutes that allegation. Although respondent’s principal avers that B.C. subsequently recanted his written statement, respondent offers no evidence in support of the principal’s assertion that would contravene B.C.’s written statement in this record. Nor do I find persuasive the monitor’s statement that the principal told him that B.C. recanted. On this record, I do not find sufficient evidence to prove the second May 24, 2011 charge.

I also find that respondent improperly charged Y.V. with stating to another student on May 13, 2011 that his English teacher threw a book at him. Although the record supports a finding that Y.V. made the statement, it also indicates that, as a result of such conduct, Y.V. was removed from that English class by respondent’s principal. Once a student has been disciplined for an incident, it is improper to discipline the student again (Appeal of Hendrickson, 29 Ed Dept Rep 202, Decision No. 12,270).Respondent’s Student Handbook delineates as a potential penalty for misconduct, “Suspension from a particular class for infractions which relate specifically to that class. “Respondent’s principal states that Y.V. had been warned about making false statements regarding the English teacher and then, as a result of the above comment, was moved out of her class. I find respondent’s action in moving Y.V. out of the specific English class in response to his alleged false statement constituted discipline as set forth in its Student Handbook. Consequently, he should not have been charged for the same incident again on May 24, 2011.

With respect to the one-day suspension imposed, incases 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). I do not find that a one-day suspension is excessive or disproportionate with respect to Y.V.’s refusal to comply with the principal’s directive to walk at a leisurely pace with the monitor in the hall. Y.V.’s failure to comply was insubordinate and impaired the district’s ability to respond to his complaints of bullying. Therefore, I decline to substitute my judgment for that of respondent regarding Y.V.’s one-day suspension.

Petitioners also challenge respondent’s determination of Y.V.’s guilt, and the five-day suspension imposed, in relation to the four charges of misconduct set forth in the principal’s June 6, 2011 notice.

The first charge alleged that, on or about June 1,2011, Y.V. acted in an insubordinate manner by “refusing to comply with [the principal’s] directive to locate [the monitor] upon [Y.V.’s] arrival in the morning.” According to the principal, this directive was necessary because Y.V. would claim he was in the building but could not find the monitor. Petitioners assert in their petition that, on June 1, 2011, Y.V. arrived in the school lobby where the monitor generally waits and then follows Y.V. to class. Petitioners claim that is exactly what transpired that day and further allege that the monitor confirmed it at a subsequent meeting with the principal. The record contains no affidavits or other proof of those assertions.¹ In contrast, respondent submits an affidavit from the monitor averring that, although he waited at his usual post in the lobby on June 1, 2011, Y.V. did not meet him. The monitor further avers that he did not tell petitioners that he saw Y.V. arrive on June 1, 2011, stating “if I had seen him arrive on June 1, 2011, I would have walked with him to his first period class as was normal.” As noted above, petitioners have the burden of proof and, on this record, have not met their burden with respect to this finding of misconduct.

With respect to the second charge, the record supports respondent’s finding that, on June 1, 2011, Y.V. refused “to comply with a directive to put his phone away during PE class.” Petitioners claim that Y.V. merely was taking his cell phone out of one pocket and moving it to another. However, respondent’s physical education teacher submits an affidavit stating that, during that class, she and another teacher “warned [Y.V.] no fewer than three times to put his cellular phone away. [Y.V.] ignored the directives and continued to have his phone out.” An affidavit by the monitor corroborates this statement. On this record, petitioners fail to meet their burden, and I find that respondent’s finding of fault on this allegation is supported by competent and substantial evidence in the record.

¹ As previously noted, exhibits submitted with the reply that buttress the petition and should have been filed with the petition have not been considered.  

Y.V. was also found guilty of the third charge that, on June 1, 2011, he refused to comply with the principal’s directive to sit in the front of the bus in the afternoon. In his affidavit, the principal asserts that he had directed Y.V. to sit there to address problems Y.V. was having on the bus. He also stated that the monitor was subsequently told to sit near Y.V. at the front of the busto monitor and prevent any bullying. The monitor avers in his affidavit that on June 1, 2011, Y.V. refused to sit in the front and, instead, sat at the back of the bus.

Petitioners claim that a May 9, 2011 email from the principal “clarified” that he never directed Y.V. to sit in the front of the bus. My review of the email reveals that it is silent regarding the bus situation and cannot be deemed to be “clarification” by the principal regarding any directives pertaining to transportation on the bus. Petitioners, therefore, failed to meet their burden regarding the finding on this charge.

Finally, I find that the record does not support respondent’s finding on the fourth charge that, on June 2,2011, Y.V. falsely accused the monitor of causing him to fall down the stairs. The principal alleges in an affidavit that the day after Y.V. fell down stairs in the high school, he informed the principal that the monitor had caused him to fall. However, respondent’s teacher witness avers that he was advised that Y.V. alleged that the witness had stated he saw Y.V.’s book bag get tangled up with the monitor, causing him to fall. It is unclear from respondent’s evidence whether Y.V. was actually accusing the monitor of causing the fall. Given the lack of clarity of the evidence in this record, I do not find sufficient support for a finding of guilt on that charge.

As noted above, the sanction imposed must be proportionate to the severity of the offense involved. Given the findings of guilt on the above-noted three charges in the June 6, 2011 notice, I cannot conclude that a penalty of suspension for five days was disproportionate or so excessive as to warrant substitution of my judgment. I note that, although petitioners allege that the principal previously indicated to them that Y.V.’s failure to comply with certain of his directives would result only in detention, such statement – even if true – would not render the five-day suspension excessive. On this record, I find no basis to substitute my judgment for that of respondent on the issue of the penalty imposed.

In light of this disposition, I need not address the parties’ remaining contentions. However, while nothing herein should be construed as minimizing the serious safety, social and emotional issues raised by harassment, bullying and discrimination in public schools, I note that school districts are also responsible for maintaining order and discipline among their students. While the context surrounding Y.V.’s discipline involves allegations that he was the victim of bullying, this does not negate the student’s responsibility to comply with the instructions and directives of district officials and staff.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s findings that Y.V. is guilty of the conduct set forth in charges two and three of the May 24, 2011 notice and charge four of the June 6, 2011notice are annulled, and respondent must expunge any reference to such charges and findings from all of Y.V.’s records maintained in respondent’s district.

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