Decision No. 17,446
Appeal of T.T., on behalf of her son Y.W., from action of the Board of Education of the Carle Place Union Free School District regarding student discipline.
Decision No. 17,446
(July 16, 2018)
Law Offices of Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the suspension of her son, Y.W. (the “student”), by the Board of Education of the Carle Place Union Free School District. The appeal must be dismissed.
During the 2016-2017 school year, the student was a senior in respondent’s district. According to petitioner, the student and respondent’s middle school and high school assistant principal (“assistant principal”) have had “multiple disagreements” in which the assistant principal would “confront” the student regarding his alleged violation of school policies. Although the parties dispute the manner in which the following conversation occurred, the record indicates that, on or about December 14, 2016, the student told a special education teacher (the “teacher”) that “I feel like when I go to Pennsylvania, I should use [the assistant principal]’s face as target practice.” That same day, another student informed the teacher that the student was planning a senior prank at the end of the school year in which the assistant principal would be harmed. The teacher subsequently informed the assistant principal about the senior prank. According to an affidavit from the teacher, she forgot to inform the assistant principal about the “target practice” statement made by the student earlier that day due to her concerns about the harmful senior prank.
The next day, December 15, 2016, according to the teacher, the student approached the teacher in an aggressive and angry manner, blaming her for informing respondent’s middle school and high school principal (the “principal”) about a “fake Instagram account” he created for the assistant principal, of which the teacher was not aware at the time. According to the teacher, the student’s outburst caused her to feel threatened for her own physical safety. Thereafter, the teacher reported the student’s “target practice” statement to the assistant principal. According to an affidavit from the assistant principal, upon learning this, and in light of the student’s escalating aggressive behavior toward him, the assistant principal “legitimately felt that [his] life was in danger.”
The principal subsequently commenced an investigation and met with the student, who admitted to making the “target practice” statement. As a result, by letter dated December 15, 2016, the principal suspended the student for five days, beginning December 16, 2016, for his “target practice” statement. By letter dated December 19, 2016, petitioner appealed the short-term suspension to the superintendent who denied petitioner’s appeal by letter dated December 22, 2016.
By letter dated December 19, 2016, which was hand-delivered and sent via certified mail to petitioner’s home, the superintendent served a notice of charges which scheduled a superintendent’s hearing for December 22, 2016. The notice stated as follows:
Charge I: ENGAGING IN CONDUCT THAT ENDANGERS THE SAFETY, MORALS, PHYSICAL OR MENTAL HEALTH OR WELFARE OF OTHERS
On or about December 14, 2016, [the student] displayed actions or statements directed at an identifiable individual which are intended to be or perceive[d] as ridiculing, demeaning or threatening
Charge II: ENGAGING IN CONDUCT THAT IS VIOLENT
On or about December 14, 2016, [the student] displayed and/or threatened violence against an administrator.
A hearing was held on December 22, 2016. The principal testified on behalf of respondent and the student testified on his own behalf. At the hearing, the student admitted to making the statement. At the close of the guilt phase of the hearing, the hearing officer recommended that the student be found guilty of both charges. Specifically, as to the first charge, the hearing officer found that by making the “target practice” statement, the student engaged in conduct that endangered the safety, morals, physical or mental health or welfare of the assistant principal, in that his statement was intended to threaten the assistant principal due to his professed hatred toward him, which inherently endangered the assistant principal’s safety, physical and/or mental health and/or welfare. As to the second charge, the hearing officer found that by making the “target practice” statement, the student engaged in conduct that was violent, in that his statement was intended to threaten the assistant principal with violence due to his professed hatred toward him.
Following the hearing, the superintendent sustained the charges against the student by letter dated December 22, 2016, in which he determined that the student was guilty of endangering the health or safety of others and engaged in violent conduct, in violation of the district’s code of conduct. As a result, the superintendent determined, among other things, that the suspension would continue through the end of the 2016-2017 school year (June 23, 2017). The letter also informed petitioner of her right to appeal to the board within ten business days of receipt of the decision.
This appeal ensued. Petitioner’s request for interim relief was denied on March 3, 2017.
Petitioner challenges both the short and long-term suspensions and seeks to have them overturned and expunged from the student’s records. With regard to the initial five-day suspension, petitioner claims that the notice from the principal was not sufficiently specific. She also contends that, with regard to the informal conference, she was never advised that the meeting on December 15, 2016 was the informal meeting and she was not provided an opportunity to speak with witnesses, submit evidence, or question the investigation. With regard to the long-term suspension, petitioner asserts that the notice from the superintendent did not explain the charges in clear detail. She also asserts that she was denied the right to question the teacher as a witness or to adjourn the hearing; that the assistant superintendent had a “closed door” meeting with the teacher on the morning of the hearing; and that the only evidence submitted by respondent was the student’s admission. Petitioner also asserts that respondent’s determination is not supported by substantial and competent evidence because the “target practice” statement was not “violent” per the district policy definition. Petitioner claims that the assistant principal targeted the student daily for alleged violations of school policy, and that the student’s “only intent was to express opposition [to] certain school policies, and the practices of select[ive] enforcement by [the assistant principal].” Finally, petitioner asserts that respondent’s actions have “deprived [the student] of liberty and interests, which are protected under the Fourteenth Amendment of the United States Constitution.”
Respondent asserts that the appeal must be dismissed as untimely and for failure to exhaust administrative remedies. Respondent also asserts that the petition fails to set forth a clear and concise statement of claims showing that petitioner is entitled to the relief she seeks.
I must first address the procedural issues. Respondent objects to petitioner’s reply as lacking an affidavit of service and verification, untimely, and outside the scope of a reply. Respondent submits a sur-reply and requests that I consider it in the event that I consider the new allegations contained within petitioner’s reply.
Respondent asks that I reject petitioner’s reply because it contains no affidavit of service. Respondent appears to argue that petitioner was required by §275.9 of the Commissioner’s regulations to provide respondent with an affidavit of service together with the reply. However, §275.9 of the Commissioner’s regulations contains no such requirement, and provides, in relevant part, only that “[w]ithin five days after the service of any pleading or paper ... the original, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted” to my Office of Counsel (see Appeal of Williams, 51 Ed Dept Rep, Decision No. 16,302). The reply submitted to my Office of Counsel contains the requisite affidavit of service. Accordingly, I will not reject the reply on this ground.
Sections 275.5 and 275.6 of the Commissioner's regulations require that all pleadings in an appeal to the Commissioner be verified and an affidavit of verification attached. Although petitioner calls her reply a “Verified Answer,” the document actually purports to be a reply to respondent’s answer. Nonetheless, the document purports to be verified, yet the record contains no such verification. As such, under these circumstances, the reply was not properly verified in accordance with §§275.5 and 275.6, and I have not considered it (see Appeal of McAvey, 56 Ed Dept Rep, Decision No. 16,978; Appeal of a Student With a Disability, 46 id. 102, Decision No. 15,454; Appeal of Principio, 39 id. 11, Decision No. 14,157). Accordingly, I have not considered respondent’s sur-reply.
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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). Because the student’s suspensions have been served, the appeal is therefore moot, except to the extent petitioner seeks expungement of the student’s record (Appeal of E.B. and F.B., 53 Ed Dept Rep, Decision No. 16,545; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666.
Additionally, I note that 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 J.H. and R.H., 57 Ed Dept Rep, Decision No. 17,317; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578). Here, the Carle Place Union Free School District’s Code of Conduct provides for an appeal to the superintendent within ten business days of the principal’s suspension, and if parents are not satisfied with the superintendent’s decision, they must file a written appeal to the board within ten business days of the superintendent’s decision unless they can show that extraordinary circumstances prevented them from doing so. It further states that, “[o]nly final decisions of the Board of Education may be appealed to the Commissioner within thirty days of such decision.” By letter dated December 15, 2016, the principal suspended the student for five days. By letter dated December 19, 2016, petitioner appealed the short-term suspension to the superintendent, who denied petitioner’s appeal by letter dated December 22, 2016. It appears from the record that petitioner failed to exhaust her administrative remedies by not appealing the short-term suspension to the board. However, as the December 22, 2016 determination contains no notice of such a restrictive requirement, I decline to dismiss this portion of the appeal for failure to exhaust administrative remedies (see Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).
With respect to the December 22, 2016 determination by the superintendent following the superintendent’s hearing, in which he suspended the student through June 23, 2017, Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination. Accordingly, the decision of a superintendent to suspend a student in excess of five school days following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of J.H. and R.H., 57 Ed Dept Rep, Decision No. 17,317; Appeal of R.A., 48 id. 426, Decision No. 15,903). Moreover, as was the case with appeals from a short-term suspension, the district’s Code of Conduct provides that appeals from the superintendent’s decision must be commenced within ten business days unless the parents can show that extraordinary circumstances prevented them from doing so. The December 22, 2016 determination by the superintendent also indicated that petitioner had the right to appeal the decision to the board within ten business days. The record contains no evidence indicating that petitioner appealed the determination to the board prior to commencing the instant appeal. Therefore, it appears that petitioner has failed to exhaust her administrative remedies with respect to the long-term suspension, and the appeal from such long-term suspension must be dismissed on that basis.
In any event, the appeal must be dismissed as 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912). This appeal was commenced by service of the petition on February 13, 2017. With respect to the December 22, 2016 letter informing petitioner of the superintendent’s denial of her appeal from the principal’s short-term suspension, there is no evidence in the record to indicate that petitioner appealed the short-term suspension to the board, on a timely basis, or otherwise. Thus, for purposes of determining timeliness, I will treat respondent’s December 22, 2016 letter notifying petitioner of the short-term suspension as respondent’s final determination. Allowing the usual five days for mailing, the appeal was not commenced within 30 days of petitioner’s receipt of said letter and petitioner has not provided any excuse for the delay. Therefore, the appeal is untimely as to petitioner’s challenge to the superintendent’s determination to dismiss petitioner’s appeal from the student’s short-term suspension.
Similarly, if for the purpose of determining timeliness I consider the December 22, 2016 determination to be respondent’s final determination with respect to the long-term suspension, petitioner’s claims in this regard must also be dismissed as untimely. Allowing the usual five days for mailing, the appeal was not commenced within 30 days of petitioner’s receipt of said letter and, once again, petitioner has not provided any excuse for the delay. Therefore, the appeal is untimely as to petitioner’s challenge to the superintendent’s imposition of the student’s long-term suspension.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Although the record indicates that the student was taught by a special education teacher in the past, there is no evidence in the record that the student is identified as a student with a disability.
 The student contends that he made the statement via text message to the special education teacher while standing next to her, and the special education teacher states that the student verbally made the statement.