Decision No. 16,989
Appeal of L.L., on behalf of her son J.L., from action of the Board of Education of the LaFayette Central School District regarding student discipline.
Decision No. 16,989
(November 3, 2016)
Ferrara Fiorenza PC, attorneys for respondent, Heather M. Cole, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the LaFayette Central School District (“respondent”) to suspend her son, J.L., from school and interscholastic athletics. The appeal must be dismissed.
During the 2013-2014 school year, J.L. was an eighth-grade student at respondent’s junior-senior high school and a member of the modified lacrosse team (“team”). On June 4, 2014, prior to lacrosse practice, two team members opened a team member’s locker and looked through his personal belongings. Another team member (“victim”) witnessed this, and reported it to the owner of the belongings. The two students who had looked through the personal belongings subsequently confronted and physically attacked the victim. Sometime thereafter, J.L. walked by the victim, who was standing with his back to J.L., and poked him in the buttocks with a lacrosse stick.
A member of the team told one of the team’s coaches about the incident. The coaches reported the incident to the athletic coordinator, who then notified the principal of the junior-senior high school (“principal”). The next day, the athletic coordinator, school resource officer and principal conducted an investigation. The victim, J.L., four team members, and two coaches were interviewed. At the conclusion of the investigation, the principal recommended that J.L. be disciplined for his role in the incident which the principal described as “separate and distinct” from the misconduct committed by the other students. The principal affirmed that J.L.’s conduct constituted a Class II Infraction and harassment or bullying under the district’s code of conduct. As a penalty, the principal recommended one day of in-school suspension to be served on June 6, 2014 as well as athletic suspension for the remainder of the spring 2014 season - one practice and one game.
Later that day, June 5, 2014, the principal contacted J.L.’s father who subsequently came to the school. The principal notified him of the result of the investigation and her recommended penalties. Petitioner admits that she and J.L.’s father were separately notified of J.L.’s suspension from the team, but, as further discussed below, denies that she was notified of the in-school suspension prior to its imposition on June 6, 2014.
On June 18, 2014, petitioner and J.L.’s father met with the incoming superintendent to tell J.L.’s “side of the story.” On August 22, 2014 and October 1, 2014, petitioner again met with the superintendent to discuss the incident. By letter dated October 15, 2014, the superintendent informed petitioner that, under the district’s policy, petitioner could appeal the superintendent’s determination to respondent. On December 11, 2014, petitioner attended respondent’s regularly scheduled board meeting and, in an executive session, presented an argument and documentary evidence supporting her appeal. Petitioner did not receive a response. In a letter dated April 29, 2015, the superintendent advised petitioner that respondent “consider[ed] this matter closed.” This appeal ensued.
Petitioner argues that J.L. was wrongfully associated with, and punished for, a physical altercation in which he did not participate. Petitioner asserts that J.L. was unaware of the physical altercation due to his location in the locker room, and that “no one was holding or harassing” the victim at the time J.L. poked him in the buttocks with a lacrosse stick. Petitioner further contends that J.L.’s behavior is commonplace among team members and that there is no evidence in the record that the victim was harmed by J.L.’s conduct. Additionally, petitioner argues that the penalty imposed was excessive under the circumstances.
For relief, petitioner requests that any reference to the incident be expunged from J.L.’s record. She also requests that an apology be made to her son, as well as, “restitution [sic] of his reputation” by a clarification from respondent that he was not involved in the incident. Further, petitioner asks that I require respondent to write a protocol for investigating incidents; [hold the administration to the “same standards as children for bullying;”] and require that respondent issue written decisions resolving appeals.
Respondent contends that the appeal is untimely, and that even if it was timely, petitioner received all the due process rights to which she was entitled. Respondent maintains that there is competent and substantial evidence that J.L. violated the school code of conduct and that the penalty imposed was appropriate. Respondent also argues that, with respect to any claims petitioner has made regarding violation of the Dignity for All Students Act (“DASA”), she has failed to state a claim upon which relief can be granted. Respondent also asserts that the Commissioner lacks the authority to address some of petitioner’s allegations, including those arising under the Freedom of Information Law (“FOIL”) and the Open Meetings Law. Finally, respondent objects to a reply submitted by petitioner, arguing that it should be rejected as untimely and that its contents exceed the permissible scope.
First, I will address whether 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).
Here, the record indicates that respondent failed to issue a decision resolving petitioner’s appeal of the superintendent’s determination, which precludes a determination of whether this appeal was commenced in a timely manner. By letter dated October 15, 2014, the superintendent, in accordance with a policy adopted by the board, invited petitioner to appeal the in-school suspension. Petitioner subsequently appealed to the board at its December 11, 2014 board meeting. Respondent failed to issue any decision whatsoever in the approximately six-month period between the board meeting and the instant appeal. Under the circumstances of this case, I decline to dismiss the appeal as untimely.
Turning to the timeliness of petitioner’s reply, 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). While the affidavit of service by mail filed with my Office of Counsel indicates that petitioner timely served her reply, it was returned to her by the United States Postal Service for “insufficient address.” Petitioner submitted a copy of the returned envelope indicating that the reply was timely mailed and sent to the address listed on respondent’s letterhead. Respondent argues that petitioner had previously “properly and completely” addressed mail that was successfully delivered to the office of their attorney. It is reasonable that petitioner would use the address listed on respondent’s letterhead. Therefore, I decline to reject the reply as untimely.
However, 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, as for the relief sought by petitioner, several of her requests are outside the scope of an appeal to the Commissioner. First, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). Similarly, to the extent petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employee to issue an apology (Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773; Application of McDougall and Dacey, 42 id., Decision No. 14,819; Appeal of Philips, 41 id. 10, Decision No. 14,595).
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.
Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law 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 McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886). Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.
Turning to the merits, the appeal must be dismissed. 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).
With regard to petitioner’s procedural challenge, in-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598). Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).
Petitioner complains that, when she spoke with the principal by telephone on June 5, 2014, she was not informed that the district intended to impose an in-school suspension. In an affidavit, the principal avers that she met personally with J.L.’s father on June 5, 2014 and told him that the penalty would include in-school suspension. This is supported by a student discipline report completed by the principal on June 5, 2014. This report states that the principal held a “face to face” meeting with a parent; that she contacted a parent “about the punishment,” and that a full day of in-school suspension would be imposed. The parties agree that J.L.’s father is J.L.’s primary contact.
Under these facts, I find that petitioner has not carried her burden to show that J.L. and his parents were deprived of an opportunity to discuss the conduct being reviewed. Petitioner does not deny or refute any of respondent’s contentions concerning the meeting between J.L.’s father and the principal on June 5, 2014. Therefore, on this record, it is undisputed that J.L.’s father was informed of the in-school suspension and provided an opportunity to discuss it with the principal, the individual authorized to impose the discipline. Thus, I find that respondent provided the appropriate level of due process under the circumstances.
Finally, petitioner contends that J.L.’s in-school and athletic suspensions were excessive and seeks expungement of these suspensions from J.L.’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).
With regard to the excessiveness of the athletic suspension, this issue is moot insofar as there is no evidence that the suspension is a part of J.L.’s student record. On February 26, 2015, at petitioner’s request, the district provided her with a copy of all disciplinary records in J.L.’s file. The sole document contained in J.L.’s file was a student discipline report dated June 5, 2014 which identified a single day of in-school suspension on June 6, 2014. Therefore, because the student’s athletic suspension is not contained in his student record, no meaningful relief could be granted on this claim and any discussion of whether the athletic suspension was excessive would therefore be academic under the circumstances (Appeal of Wierzchowski, 39 Ed Dept Rep 682, Decision No. 14,348).
As for the one-day in-school suspension, petitioner has not carried her burden to show that this punishment was excessive under the circumstances. According to an affidavit executed by a team member who witnessed the physical altercation, one student “pushed [the victim] up against the lockers ... choking him and literally lifting him off the floor.” Another team member averred that after the victim said “can’t breathe,” he was dropped to the ground where another team member sat on his legs. J.L. was in the locker room while this occurred. The parties agree that J.L. did not participate in the physical altercation and that his contact with the victim was “separate and distinct.” However, it is undisputed that J.L. walked by the victim shortly after the incident and poked him in the buttocks with a lacrosse stick.
Petitioner admits that J.L. poked another student in the buttocks with his lacrosse stick, but urges that this was intended as a “friendly” gesture that represents a “common interaction among the lacrosse players.” However, I cannot find that poking another student in the buttocks with an object is appropriate under these or any circumstances. Even if J.L.’s conduct was intended as a “friendly” gesture, this does not negate his guilt on the charge that he violated respondent’s code of conduct, which prohibits acts that endanger the safety, health, or well-being of students as well as unacceptable social behavior (see e.g. Appeal of C.M., 53 Ed Dept Rep, Decision No. 16,583). Therefore, I find respondent’s determination to be reasonable and supported by the record.
Finally, petitioner has not carried her burden to show that the district violated the student’s rights under DASA. Petitioner argues that statements contained in written notes taken by a former superintendent provide evidence that district staff were aware “of students making remarks that [we]re malicious and very damaging to [the student’s] reputation.” However, these notes were taken during the course of the district’s investigation, and there is no evidence in the record that the former superintendent or the interviewees repeated these statements to others. Additionally, the district’s superintendent avers that the district “made every effort” to protect each student’s right to privacy during the course of the investigation, and “did not publicly speak about the results of the . . . investigation.” Petitioner also makes conclusory allegations that district employees and fellow students spread “[m]alicious gossip” and “rumors” about the student, but these claims are not supported by the record.
In light of this disposition, I need not address the parties’ remaining claims.
THE APPEAL IS DISMISSED.
END OF FILE
 The new superintendent’s appointment became effective on July 1, 2014.
 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). Although a copy of the district’s policy was not included in the record, I have taken administrative notice of the policy located on the district’s official website and the policy does require the appeal of short-term suspensions to the board before appealing to the Commissioner.
 Petitioner does not allege that J.L. was deprived of an opportunity to discuss the conduct and proposed suspension.
 Petitioner asserts that, at that time, J.L. was at his locker “in a location that is completely out of the visual field of where the bullying event occurred.”
 The district produced redacted versions of investigatory notes taken by the former superintendent, principal, and school resource officer in response to a FOIL request by petitioner.