Appeal of A.G., on behalf of her son R.G., from action of the Board of Education of the Carmel Central School District, Superintendent Dr. James M. Ryan and Assistant Superintendent Andrew Irwin, regarding student discipline.

Decision No. 17,084

(May 10, 2017)

Shaw, Perelson, May & Lambert, LLP attorneys for respondent, Beth L. Sims, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the alleged failure of the Board of Education the Carmel Central School District (“respondent board”), Dr. James M. Ryan (“superintendent”) and Andrew Irvin (“assistant superintendent”)[1] to acknowledge and resolve her grievance regarding R.G.’s discipline.   The appeal must be dismissed.

By letter dated November 24, 2014, petitioner was notified that R.G. was required to serve a one-day in-school suspension for engaging in a bullying incident (“the incident”).  Prior to the in-school suspension, R.G.’s father met with the assistant high school principal (“assistant principal”) to complain that an alleged prior violation of Title IX of the Educational Amendments of 1972 (“Title IX”) against R.G. by another student (“the prior act”) led to the incident.  Subsequently, in a number of emails, the complaint was escalated to the high school principal who responded to petitioner and her husband by email.

On January 12, 2015, petitioner emailed a “formal grievance” to the superintendent and the president and vice president of the board, in which she objected to R.G.’s suspension and requested a response within 30 days.  She allegedly did not receive a response.  On February 26, 2015, petitioner mailed, by certified mail, the formal grievance to the superintendent, assistant superintendent and all board members.  Petitioner again requested a response within 30 days, but according to the record did not receive a response.  This appeal ensued.

Petitioner alleges that the board, superintendent, and assistant superintendent failed to follow the provisions of the Dignity for All Students Act (“DASA”) and Title IX, when they allegedly failed to investigate and punish another student for the prior act.  Petitioner requests that I order respondent to address her grievance, expunge R.G.’s suspension and investigate the Title IX violation related to the prior act.

Respondent maintains that the petitioner fails to demonstrate a clear legal right to the relief requested and that the appeal is untimely.  Respondent further contends that the appeal should be dismissed for failure to join a necessary party and that petitioner has failed to establish personal jurisdiction over the superintendent and assistant superintendent.

The appeal must be dismissed as against the superintendent and assistant superintendent for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Petitioner’s affidavit of service indicates that the petition was served on respondent board by leaving the petition with the district clerk.  The superintendent and assistant superintendent were not personally served with the petition and there is no evidence in the record that the district clerk is authorized to accept service on their behalf.  Where there is no proof that an individual is authorized to accept service on behalf of a respondent, service is improper and the appeal must be dismissed as against them (see Appeal of Willis, 50 Ed Dept Rep, Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117).

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).

To the extent petitioner challenges the in-school suspension the appeal is untimely.  On January 12, 2015 petitioner filed a “formal grievance” with the superintendent and president and vice president of the board by email which, in part, sought expungement of R.G.’s suspension.  She requested a response within 30 days but according to the record did not receive a response.  Subsequently, on February 26 and 27, 2015 copies of the “grievance” were delivered to the superintendent, assistant superintendent and all board members and petitioner again requested a response within 30 days.  There is no indication in the record that petitioner received a response within the 30-day period and her grievance was thereby constructively denied.  The record does not indicate that petitioner’s “formal grievance” was submitted pursuant to an appeals process established under district policy.  In-school suspensions are not governed by Education Law §3214 (Appeal of D.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026; Appeal of J.B., 45 id. 449, Decision No. 15,738), which means that the statutory right of appeal to the board of education of an out-of-school suspension in excess of five school days pursuant to Education Law §3214(3)(c)(1) does not apply.  Consequently, to the extent petitioner seeks expungement of her son’s in-school suspension, the appeal would be timely if commenced within 30 days of her receipt of the determination (Appeal of C.R., 49 Ed Dept Rep 325, Decision No. 16,043, judgment granted dismissing petition to review sub nom Robley v. Steiner, et al., Sup.Ct., Albany Co., March 15, 2011, n.o.r.; Appeal of J.D., 46 id. 244, Decision No. 15,495; Appeal of Miller, 35 id. 451, Decision No. 13,598).   In this case, petitioner admits that she received notice of the in-school suspension on November 25, 2014 and this appeal was not commenced until May 11, 2015.  Petitioner’s submission of the “formal grievance” on January 12, 2015 was in effect a request for reconsideration, and it is well settled that a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  Therefore, to the extent petitioner seeks expungement of the in-school suspension, such claim was not brought until several months after the 30-day period for commencing an appeal of such suspension.  Petitioner has not provided an excuse for the delay and such claim must be dismissed as untimely.

As to petitioner’s DASA claim, using the latest date of delivery of petitioner’s grievance to a board member – February 27 – the 30-day period within which she requested a response ended on March 29, 2015, which fell on a Sunday.  Consequently, applying the most liberal construction of when petitioner, who is not represented by counsel, became aggrieved, the board’s constructive denial occurred on Monday, March 30, 2015 and petitioner’s time in which to appeal began to run on that date.  However, the appeal was not commenced until May 11, 2015 - outside the required 30- day period.  Petitioner maintains that the appeal is timely because she was required to allow the board 30 days in which to respond to the “formal grievance.”   There is no such requirement in law or regulation and, in any event, as stated above, petitioner commenced her appeal more than 30 days from the date she gave respondent to respond to her “formal grievance.”  Petitioner provides no good cause for her delay and, therefore, the appeal must be dismissed as untimely insofar as petitioner claims that respondent failed to investigate the prior incident in violation of DASA.

Petitioner’s federal claim must be dismissed as well, for lack of subject matter jurisdiction.  An appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under Title IX (see 20 U.S.C. §1681 and 34 C.F.R. §106.71; Appeal of Berman, 46 Ed Dept Rep 64, Decision No. 15,442).  Therefore, I have no jurisdiction over petitioner’s Title IX claim.

To the extent petitioner claims that respondent has violated DASA by failing to impose consequences on the other student for the prior incident, on this record such claim must be dismissed as premature when brought. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Respondent has established that it initiated an investigation based on the allegations made in this appeal, and neither party has submitted any evidence of the outcome of that investigation and whether it resulted in any further action(s) by respondent.  Absent such evidence, petitioner’s claim that respondent violated DASA by not conducting a thorough investigation and then taking appropriate action pursuant to Education Law §13(1)(e) and (4) is premature.

Even if petitioner’s claim that the in-school suspension should be expunged from her son’s record were not dismissed as untimely, it would be dismissed on the merits.  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 has not demonstrated that the procedures followed by respondent in imposing the in-school suspension were not fair.  She does not allege that her son was not guilty of the misconduct with which he was charged; rather, she contends that the incident involved a “planned joke” that was in response to verbal harassment of her son by the student who was the victim of the joke.  Even if R.G. intended his actions as a joke, that is not a defense to a claim of harassment, bullying or discrimination under DASA (Appeal of C.M., 53 Ed Dept Rep, Decision No. 16,583).  Moreover, prior harassment by another student cannot be used to justify or excuse harassment or bullying of that student by petitioner’s son (see Appeal of D.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026).  On this record, petitioner has not proven that the imposition on a one-day in-school suspension for her son’s admitted misconduct was disproportionate to the offense or otherwise unfair.

Even if they were not dismissed on procedural grounds, petitioner’s claims pursuant to DASA would be dismissed on the merits.  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).  Education Law §13(d) requires that the principal, superintendent or their designees lead or supervise a thorough investigation of reports of harassment, bullying or discrimination.  Respondent’s assistant principal avers that he conducted an initial investigation of the allegations made by all students involved in both the incident leading to R.G.’s suspension and the prior act.  The assistant principal also avers that all matters were referred to the district’s DASA Coordinator and Title IX Coordinator who were conducting an investigation based on the information provided by petitioner to the district and in the petition in this appeal.  Petitioner has not submitted a reply and has offered no evidence to refute such allegations and, therefore, petitioner has not met her burden of proving that the district has violated DASA by failing to investigate the prior incident.

In light of this disposition I need not address the parties’ remaining contentions.  However, I note that nothing herein should be construed as minimizing the serious safety, social, and emotional issues raised by intimidation, harassment and bullying in public schools.

THE APPEAL IS DISMISSED.

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