Appeal of M.C., on behalf of her daughter S.C., from action of the Ossining Union Free School District regarding student discipline.

Decision No. 16,850

(November 18, 2015)

Kuntz, Spagnuolo, Murphy & Gronbach, P.C., attorneys for petitioner, Vanessa M. Gronbach, Esq., of counsel

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

Elia, Commissioner.--Petitioner appeals the determination of the Ossining Union Free School District (“respondent”) to suspend her daughter, S.C.  The appeal must be sustained in part.

At the beginning of the 2011-2012 school year, S.C. attended kindergarten in a dual-language class at respondent’s elementary school.  S.C. was accepted into the dual-language program by way of a lottery.

On or about September 28, 2011, petitioner received a phone call from a social worker at respondent’s school regarding an incident in which S.C. had grabbed another student (“Student A”) and threatened to kill him.  The record indicates that S.C. admitted to her mother that she had threatened Student A, but claimed that he had been calling her names.  On or about October 6, petitioner again received a phone call from the social worker, who stated that another incident had occurred between S.C. and Student A.  Petitioner and the social worker met on October 7 to discuss the incidents.

Later that same day, petitioner received another phone call from the social worker stating that S.C. had slapped Student A.  According to petitioner, S.C. admitted to petitioner that she slapped Student A, but claimed that he had “gotten in her face and was growling at her.”  The social worker asked petitioner to attend a meeting with the school’s principal on October 11 to discuss S.C.’s behavior.  On the evening of October 7, the principal called petitioner and informed her that S.C. was being suspended on October 11 and that S.C. would not be allowed on school property during the meeting on October 11.

By letter dated October 7, which petitioner received on October 8, the principal informed petitioner that S.C. would be suspended on October 11.  The letter explained the charge against S.C. and stated that her behaviors were considered bullying under respondent’s code of conduct and “interfered with the orderly operation” of respondent’s schools.  The letter further stated that an informal conference with the principal and the social worker would be held on October 11 to discuss the suspension and that a copy of respondent’s code of conduct was attached for petitioner’s “ready reference.”

Petitioner, S.C.’s father, the principal and the social worker met as planned on October 11.  At the meeting, the principal informed petitioner that S.C. would be moved to another kindergarten classroom, not as a disciplinary action, but for the safety of both S.C. and Student A.  Petitioner requested that S.C. be placed in another class within the kindergarten dual-language program, but was informed that the other dual-language class was full and therefore, S.C. would not be attending the dual language program for the remainder of the 2011-2012 school year.  However, the principal avers that she told petitioner that S.C. would have the opportunity to join the dual-language program during the 2012-2013 school year.

On October 12, S.C. was permitted to return to school and attend her new classroom; however, petitioner elected to keep her at home through Friday, October 14. 

On October 13, petitioner emailed respondent’s assistant superintendent seeking a meeting to discuss S.C.’s removal from the dual-language program.  A meeting was scheduled for October 18 with petitioner, the assistant superintendent, petitioner’s mother, petitioner’s attorney, and respondent’s attorney.  It appears from the record that many of the same issues discussed at the October 11 meeting were again discussed on October 18, and the assistant superintendent reiterated to petitioner that S.C. was moved to a different classroom for safety reasons only.  Petitioner claims that she was also informed at the October 18 meeting that there had been prior incidents between her daughter and Student A.  Petitioner claims that, during this meeting, she also inquired whether a referral had been made to respondent’s Committee on Special Education (“CSE”) regarding S.C., but that she did not receive an answer.

S.C. began to attend her new class on Monday, October 17, 2011.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner alleges that respondent’s October 7 letter did not inform her of her right to confront complaining witnesses at the informal conference, which did not occur prior to the imposition of the suspension in violation of the Education Law.  Petitioner also contends that S.C.’s “permanent removal” from the dual-language program was punitive and violated her due process rights under Education Law §3214(3-a) and respondent’s own code of conduct regarding appropriate penalties for student discipline cases.  Petitioner alleges that she requested information from respondent under the Freedom of Information Law (“FOIL”) and that respondent did not provide that information.  Petitioner requests that S.C.’s one-day suspension and her removal from the dual-language program be reversed, annulled and expunged from her record.  Petitioner requests that S.C. be returned to her kindergarten classroom in the dual-language program or placed in the other kindergarten classroom within that program.

Respondent argues that the petition must be dismissed because petitioner failed to appeal S.C.’s suspension to the superintendent or board of education (“BOE”).  Respondent also contends that petitioner’s claims related to the one-day suspension are moot and must be dismissed since S.C. already served the suspension.  Respondent argues that petitioner has not demonstrated that its actions were arbitrary or capricious and therefore, she has not met her burden of proof.  Respondent further contends that the petition must be dismissed for failure to join a necessary party, namely, the student who took S.C.’s place in the dual-language kindergarten classroom. 

Initially, I must address the procedural issues.  Petitioner submitted a reply with an additional exhibit, affidavit and affirmation (“reply documents”).  Respondent argues that the reply documents are untimely and objects to their scope.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  In this case, the affidavit of service submitted by respondent indicates that, on November 30, the answer was served by Federal Express for overnight delivery.  The affidavit of service submitted by petitioner indicates that the reply documents were served by UPS Overnight Delivery on December 14.  Because the answer was not served by mail, but was served by private express delivery service for overnight delivery, the date of receipt would be December 1 and petitioner’s reply documents are therefore untimely.

Even if the reply documents were timely, I note that 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, even if I had considered the reply documents, I would not have considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent alleges that the appeal must be dismissed because petitioner failed to appeal S.C.’s suspension to the superintendent or the BOE.  Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578; Appeal of M.A., 45 id. 206, Decision No. 15,303).  Here, respondent’s code of conduct states that, if after the informal conference is held, the parents are not satisfied with the decision made by the principal, the principal “shall promptly advise” the parents that they “must” file a written appeal with the superintendent within five business days “unless they can show extraordinary circumstances precluding them from doing so.”  Other than the mere statement in the October 7 letter that a copy of respondent’s code of conduct was attached for petitioner’s “ready reference,” the record contains no evidence indicating that the principal so advised petitioner following the informal conference as required by respondent’s policy.  Under these circumstances, I will not dismiss the appeal for failure to exhaust administrative remedies (see Appeal of L.L., 51 Ed Dept Rep, Decision No. 16,334; Appeal of F.M., 48 id. 244, Decision No. 15,849).

Respondent argues that the appeal must 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 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).  S.C. served her one-day suspension on October 11, 2011.  Accordingly, with respect to the suspension, the appeal is moot except to the extent petitioner requests expungement of S.C.’s record (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).  Moreover, in connection with her claim that respondent violated Education Law §3214(3-a), its code of conduct and S.C.’s due process rights in “permanently removing” her from her classroom, petitioner asks that S.C. be returned to her dual-language kindergarten classroom or that she be placed in respondent’s other dual-language kindergarten classroom.  However, because the 2011-2012 school year, during which S.C. attended kindergarten, has ended, no meaningful relief can be granted on this claim, which must also be dismissed as moot (see e.g., Appeal of A.S. and E.S., 53 Ed Dept Rep, Decision No. 16,550).

Petitioner’s only remaining claim is that the one-day suspension should be expunged from S.C.’s record because respondent’s October 7 letter did not inform her of her right to confront complaining witnesses at the informal conference and because the written notice was not received prior to the imposition of the suspension.  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

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 (see e.g. Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).

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 J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

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).

In this case, the record indicates that the principal determined that S.C.’s presence in school posed an ongoing threat of disruption to the academic process.  Indeed, the principal’s October 7 letter stated that S.C.’s conduct was “unacceptable and interferes with the orderly operation of our schools.”  As noted above, under such circumstances, 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]).  Here, the record indicates that petitioner received notification of S.C.’s October 11 suspension through a telephone call from the principal on the evening of October 7 and by letter also dated October 7.  The principal avers that, after her telephone call with petitioner on October 7, she drafted the letter, which was “thereafter taken to the local post office around 5:00pm to be delivered to [petitioner] the next day.”  The assistant superintendent avers that, at the principal’s request, she delivered the letter to the post office on October 7.  Petitioner admits that she received the letter on October 8.  Thus, I conclude that the timing of the notice was adequate under the circumstances. 

However, the October 7 letter failed to inform petitioner of her right to question complaining witnesses.  Instead, the letter states that respondent’s code of conduct is attached to the letter for petitioner’s “ready reference.”  Respondent’s code of conduct states that, at the informal conference, parents shall be permitted to ask questions of complaining witnesses.  I find that this reference to the district’s code in the suspension notice is insufficient to provide notice of petitioner’s right to question complaining witnesses (see e.g., Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of F.M., 48 id. 244, Decision No. 15,849).  Although respondent argues that there was no need for petitioner to question complaining witnesses because S.C. admitted to the conduct and such questioning would have been “pedagogically inappropriate,” neither the statute nor the regulation limit such right to particular circumstances.  Respondent’s assertion that such questioning was unnecessary and inappropriate cannot excuse its noncompliance with the clear language of both statute and regulation (see e.g., Appeal of a Student With a Disability, 38 Ed Dept Rep 378, Decision No. 14,059).  In this case, respondent failed to provide petitioner with written notice of her right to question the complaining witness and S.C.’s one-day suspension must therefore be expunged from her record.

Finally, to the extent petitioner objects to respondent’s handling of her FOIL request, I note that section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

In light of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of S.C. on October 11, 2011 be expunged from her records.

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