Appeal of M.B. and J.B., on behalf of their son J.B., from action of the Board of Education of the Union-Endicott Central School District regarding student discipline.

Decision No. 17,535

(November 19, 2018)

Coughlin & Gerhart, LLP, attorneys for respondent, Nathan D. VanWhy, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Union-Endicott Central School District ("respondent") to discipline their son (“the student”).  The appeal must be dismissed.

The incidents at issue in this appeal took place on May 2 and 5, 2017, respectively, when the student was attending respondent’s high school.  On May 2, 2017, the student in this appeal and another student from the high school allegedly drove around the town with an air rifle, with which they “menaced” another student within a few blocks from the high school.  The students also shot the air rifle at a woman farther away from school grounds, who was struck and fled.  The student was arrested on May 3, 2017 for his conduct.  Subsequently, on May 5, 2017, the student and several other students engaged in an altercation in the cafeteria during lunch at school regarding the student’s May 2, 2017 behavior.  During the altercation, the student allegedly shoved another student.

Following an investigation, a meeting was held on May 15, 2017, with the student, petitioners, the principal and the assistant principal.  The principal made the decision at the meeting to suspend the student for 5 days and request a superintendent’s hearing.  The superintendent’s hearing was scheduled for May 19, 2017 but was adjourned by petitioners to engage in settlement discussions with the district.  A settlement agreement was subsequently signed on May 26, 2017, pursuant to which petitioners and the student waived their rights to a superintendent’s hearing and agreed, among other things, that the student would be suspended until June 30, 2018, and the student was allowed to complete his senior year with alternative instruction and attend graduation.[1]  This appeal ensued.

Petitioners assert that several procedural errors were made by the district in violation of Education Law §3214, including that the notice of the suspension was improper, petitioners and the student were denied the opportunity to question complaining witnesses, and petitioners were not notified of their right to appeal the suspension to the board of education.  Petitioners also assert that the student was permanently suspended from school in violation of the school’s Code of Conduct.  Petitioners also appear to allege that the timing of the manifestation determination review was made in violation of the law.  Petitioners seek “[t]he plans of the [s]chool [d]istrict to ensure that aforesaid violations will not occur in the future,” disciplinary measures against district employees, and a “written apology” from the district.

Respondent asserts that petitioners have failed to state a cause of action.  Respondent further contends that the appeal must be dismissed for lack of standing, failure to name necessary parties, and mootness.  Respondent also argues that the Commissioner lacks jurisdiction to grant petitioners’ requested relief and that petitioners have failed to exhaust their administrative remedies.  Lastly, respondent argues that petitioners waived their rights to a superintendent’s hearing, and accordingly, waived their rights to allege procedural defects regarding the suspension and the manifestation determination review.

First, I must address the procedural issues.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Both parties submitted additional pleadings beyond the reply.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  In my discretion, and in light of the disposition in this matter, I have not considered these additional submissions.

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 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).  The record indicates that the student’s suspension, which ended on June 30, 2018, has been served and the student has graduated.  Moreover, petitioners have not sought expungement of the student’s record.  Accordingly, the appeal must be dismissed as moot (Appeal of R.F., 52 Ed Dept Rep, Decision No. 16,370).

To the extent that petitioners request a written apology or a declaration that the district will not take these same actions in the future, in effect, petitioners are seeking an advisory opinion concerning the propriety of respondent’s actions.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).

To the extent petitioners request that I discipline school employees, I have consistently held that only a board of education has the authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (see e.g. Appeal of M.B. and M.B., 56 Ed Dept Rep, Decision No. 17,044; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773; Appeal of Lloyd, 39 id. 537, Decision No. 14,303; Appeal of Basil, 37 id. 568, Decision No. 13,929).  Although Education Law §310 confers broad authority upon the Commissioner to review any official act or decision of local school authorities, including matters relating to the discipline of school personnel, the Commissioner lacks jurisdiction to impose discipline on district employees (see e.g. Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,236; Matter of Richardson, 24 id. 104, Decision No. 11,333; Raymond, et al. v. Ambach, Supreme Court, Albany County, Special Term; Cholakis, J.; judgment granted dismissing petition to review; May 23, 1985; n.o.r.).  Such employee discipline is within respondent’s exclusive jurisdiction and is generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts (see Education Law §§1709(16) and (33), 3020, 3020-a; Civil Service Law §75).

Even if the appeal were not dismissed for the reasons above, it would be dismissed on the merits.  Here, no superintendent’s hearing was held because petitioners signed a stipulation of settlement with respondent on May 26, 2017.  Respondent asserts that petitioners therefore waived their due process rights.  I agree. Previous Commissioner’s decisions have recognized that under certain conditions, parents may waive a student’s due process rights under Education Law §3214 (Appeal of T.B., 52 Ed Dept Rep, Decision No. 16,385; Appeal of A.S. and S.K., 44 id. 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818; Appeal of a Student Suspected of Having a Disability, 41 id. 390, Decision No. 14,722).  For such a waiver to be valid, however, it must be “voluntary, knowing and intelligent” (Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976).  The district must provide the student and parents with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818).  Here, the stipulation of settlement signed by both parties clearly states that “the [p]arent and [s]tudent voluntarily waive their rights to a superintendent’s hearing...” and nothing in the record indicates, nor do petitioners argue, that the settlement agreement was not entered in a voluntary, knowing and intelligent manner (see Appeal of R.F., 52 Ed Dept Rep, Decision No. 16,370).  Therefore, I find that petitioners, having knowingly and voluntarily entered into a settlement agreement with respondent, are precluded from challenging the facts and circumstances underlying the student’s suspension (Appeal of T.B., 52 Ed Dept Rep, Decision No. 16,385).

In light of this disposition, I need not consider petitioners’ remaining contentions.

THE APPEAL IS DISMISSED.

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