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Decision No. 16,990

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

Decision No. 16,990

(November 3, 2016)

Ferrara Fiorenza PC, attorneys for respondent, Joseph G. Shields, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the suspension of their son, a student with a disability (hereinafter “the student”), by the Board of Education of the Palmyra-Macedon Central School District (“respondent”).  The appeal must be dismissed.

During the 2015-2016 school year, the student attended respondent’s middle school.  On January 28, 2016, one of the student’s teachers discovered a utility blade in the desk of another student in her classroom.  This student reported that he received it from the student who is the subject of this appeal.  Subsequently, a school psychologist discovered that the student possessed a container in his pocket which contained four utility blades.  The school’s assistant principal investigated and determined that the utility blades were stolen from a closet in the technology classroom.  The student initially stated to the assistant principal and the school psychologist that the technology teacher gave him the utility blades; however, he later stated that he found the utility blades on the floor of the technology classroom.  The school psychologist discussed the incident with the student and assisted him in boarding the school bus.

That same day, respondent’s director of social services contacted one of the student’s parents via telephone and informed him of the charges and suspension.  Additionally, the assistant principal met with the student’s other parent in person.  At this meeting, the assistant principal explained that the student was suspended the following day, January 29, 2016 and that petitioners would be informed if any further consequences would be imposed.

By letter dated January 29, 2016, respondent summarized the above events and reiterated that the student would be suspended on Friday, January 29, 2016 and that the student could return to school on Monday, February 1, 2016.

The record indicates that when the student returned to school on February 1, 2016, he engaged in a “violent outburst,” during which he argued with staff, struck a staff member, and lunged at a fellow student.  Respondent imposed a five-day out of school suspension for this conduct, which triggered respondent’s obligation to conduct a manifestation determination review pursuant to part 201 of the Commissioner’s regulations (see 8 NYCRR §§201.2(e), 201.4).  A manifestation determination review was held on February 8, 2016.  This appeal ensued.

Petitioners argue that respondent committed several procedural errors in connection with the January 29, 2016 suspension.  Specifically, petitioners assert that respondent failed to provide notice of the charged misconduct; provide an explanation of the basis for the suspension; and give written notice of and the opportunity for an informal conference prior to the student’s suspension.  Petitioners request that all references to the January 29, 2016 suspension be expunged from the student’s record.  Petitioners assert that expungement of the January 29, 2016 suspension would render the February 8, 2016 manifestation determination review a nullity because it would reduce the student’s total number of suspensions during the 2015-2016 school year from 11 to 10.  Accordingly, petitioners request that all references to the February 8, 2016 manifestation determination review be expunged from the student’s record. 

Petitioners also request that I order respondent to “stop all practices that deny parent and student statutory rights,” including suspension practices that are not supported by factual evidence or an admission of guilt.  Relatedly, petitioners request that I revise district policy regarding suspension appeals.  Finally, petitioners request that I evaluate “the circumstances and evidence” and, “if warranted,” remove district “personnel and officials” for “willful misconduct attempts, and professional ethics that infringed and denied petitioners[’] right to due process....”

Respondent contends that the appeal must be dismissed for failure to join necessary parties, for lack of jurisdiction and for failure to state a claim upon which relief may be granted.  Respondent further argues that the appeal is moot because, subsequent to the initiation of this appeal, it voluntarily expunged all references to the January 29, 2016 suspension and the February 8, 2016 manifestation determination review from the student’s record.  Respondent further maintains that the district conducted a thorough investigation and that its decision was not arbitrary or capricious.

First, I must address several procedural matters.  Petitioners submitted a reply in this matter.  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, to the extent that petitioners request an investigation into the conduct of district personnel and officials, 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).

Additionally, to the extent that petitioners seek to remove school district personnel and officials, the appeal must be dismissed for failure to join necessary parties.  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).  Petitioners have failed to individually name or personally serve any individuals for which they seek removal.

This 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).  The record indicates that, subsequent to the initiation of this appeal, respondent voluntarily expunged all references to the January 29, 2016 suspension and the February 8, 2016 manifestation determination review from the student’s record.[1]  Accordingly, no further meaningful relief can be granted as subsequent events have laid this controversy to rest, and any discussion of the above events would be academic  (see Appeal of a Student with a Disability, 46 Ed Dept Rep 385, Decision No. 15,540; Appeals of T.M., Sr., 42 id. 281, Decision No. 14,855).[2]

While the appeal must be dismissed as moot, to the extent petitioners raise arguments about the manifestation determination review, respondent correctly argues that the proper avenue of redress for such claims would have been to request an impartial hearing pursuant to Education Law §4404(1) and §§200.5(i) and (j), and 201.11(a)(3) of the Commissioner’s regulations (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,371; Appeal of a Student with a Disability, 46 Ed Dept Rep 385, Decision No. 15,540).[3]  If a party disagrees with the decision of an impartial hearing officer, they may appeal that decision to a State Review Officer pursuant to Education Law §4404(2).

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Although the five-day suspension imposed by respondent on February 1, 2016 was the impetus for the February 8, 2016 manifestation determination review, petitioners do not challenge the five-day suspension nor seek any relief related to it.

 

[2] While petitioners submit an April 2, 2016 e-mail communication in which they “decline[d]” expungement, the expungement determination was in respondent’s sole discretion and petitioners’ objections thereto are without merit.

 

[3] The record contains a resolution agreement executed in March 2016 which references a due process complaint notice filed on February 26, 2016.