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Decision No. 17,581

Appeal of M.R.-U., on behalf of her daughter S.U., from action of the Board of Education of the Port Jefferson Union Free School District regarding student discipline.

Decision No. 17,581

(February 4, 2019)

Ingerman Smith, L.L.P., attorneys for respondent, Mary-Ann P. Czak, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Port Jefferson Union Free School District (“respondent”) to impose discipline on her daughter (“the student”).  The appeal must be dismissed.

During the 2017-2018 school year, the student attended respondent’s high school.  On Friday, February 9, 2018, at approximately 3:30 p.m., the fire alarm in the high school sounded.  In an affidavit submitted with this appeal, respondent’s high school principal (“principal”) states that students were present in the building at this time, that she and “members of the staff” coordinated an evacuation of the building, and that the Port Jefferson Fire Department and Suffolk County Police Department responded to the alarm.  She also states that custodial staff identified “the location of the triggered pull station, which is located at the end of the ‘girls’ corridor’ to the left side of a vending machine.”  The principal’s affidavit also indicates that the high school security team reviewed the security video recorded at the time of the incident and that it portrayed “a student running toward the [] vending machine, jumping up and violently kicking it” and that the “impact caused the vending machine to move, striking and damaging the nearby pull station and sounding the alarm.”  In her affidavit, the principal indicates that she identified the student in the video as the student who is the subject of this appeal.  The principal further states that at a meeting with petitioner and the student later that day, the student admitted that she kicked the vending machine because a snack purchased by her friend would not dispense and that the fire alarm went off immediately after she kicked the vending machine.  After the meeting, respondent asserts that the principal handed petitioner a letter dated February 9, 2018 notifying petitioner that the student was suspended from school for two days.[1]

By email dated February 10, 2018, petitioner wrote to the principal and the superintendent to appeal the two-day suspension.  Subsequently, the parties scheduled a meeting to be held “first thing in the morning” on February 12, 2018.  The parties met that morning and, at the meeting, the principal hand-delivered a letter to petitioner dated February 12, 2018 which indicated that the student would be placed in in-school suspension pending the superintendent’s determination of her appeal of the short-term suspension for “Level II: Reckless Conduct.”  The letter stated that the student “ran toward and jumped onto [a] vending machine.  As a result, the vending machine moved and caused damage to the adjacent fire alarm.”  According to the record, the student spent February 12, 2018 in in-school suspension.

By letter to petitioner dated February 12, 2018, also sent via email, the superintendent indicated that the student’s suspension would be amended from a two-day out-of-school suspension to a one day in-school and one day out-of-school suspension.  The superintendent otherwise denied petitioner’s appeal.  

The record contains a letter from the principal dated February 12, 2018 confirming the student’s one-day out-of-school suspension.  In the letter, the principal indicated that the student was suspended for a single day, to be served out-of-school on February 13, 2018, for a “Level IV Infraction: [i]nitiating a report warning of fire without valid cause.”  The letter included a description of the incident which read:

Student ran toward and jumped onto vending machine in a forceful manner.  As a result, the vending machine moved causing damage to the adjacent fire alarm system and the alarm to sound.  The high school and middle school buildings were evacuated to ensure the safety of students and staff.  Members of the Suffolk County Police Department and the Port Jefferson Fire Department were deployed to the school to monitor the situation.  A report was completed by the responding officers as required, although no charges were filed.

By letter dated February 15, 2018, petitioner appealed the one-day out-of-school suspension to respondent.  In her appeal to respondent, petitioner stated that she and her spouse “understand and readily accept the Level II Reckless Conduct determination, which was assigned to [the student] on February 12 as in school suspension.” 

By letter dated March 16, 2018, respondent denied petitioner’s appeal of the student’s out-of-school suspension.  This appeal ensued.

Petitioner admits that the student engaged in the charged conduct, which she describes as “unacceptable behaviors.”  Petitioner further admits that “[a] fire alarm was inadvertently set off by the [student] when she struck a vending machine that was obscuring a fire box” but argues that the fire alarm was located behind the vending machine in violation of the New York State Fire Code, and that because “the fire box was obscured from view [the student] should not be held responsible for it sounding or the damage to it.”  Petitioner further alleges that the notices imposing the in-school and out-of-school suspensions contained factual inaccuracies.  Petitioner additionally argues that a one-day out-of-school suspension was excessive because it was not foreseeable that a fire alarm would be located behind the vending machine and, indeed, that such placement is contrary to a State or local fire code.  For relief, petitioner requests: (1) “a thorough review of evidence presented showing the location of the vending machine with respect to the fire box on February 9, 2018”; (2) “removal” of the “Level IV Infraction and out of school suspension” and the “Level II Reckless Conduct and in school suspension” from the student’s record; (3) amendment of a report made to the Port Jefferson Fire Department on February 9, 2018 and the student’s record to correct alleged factual inaccuracies; and (4) a “determination of an infraction commensurate with kicking a vending machine to dispense a purchased snack that did not dislodge.”

Respondent argues that the appeal must be dismissed, in part, as moot because the student served the out-of-school suspension on February 13, 2018.  Respondent also argues that, to the extent petitioner requests an investigation and/or a determination relating to the New York State Fire Prevention and Building Code or determinations made by the fire marshal, the appeal must be dismissed for lack of jurisdiction.  Respondent further argues that the appeal must be dismissed for failure to state a claim upon which relief may be granted and because the discipline imposed was proportionate to the severity of the offense.  Finally, respondent argues that its determination to suspend the student was “warranted, reasonable and rational,” and that petitioner and the student were provided with “legally compliant procedural due process.”

First, I must address several procedural matters.  Respondent argues that petitioner’s reply in this matter contains new allegations and exhibits.  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.

Additionally, in August 2018, after service of the petition and reply, petitioner submitted “supporting papers including Port Jefferson UFSD inspection report that [p]etitioner referred to in June 26, 2018 correspondence to the Commissioner” and requests that I accept them into the record.  Respondent objects to consideration of these documents.  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).  The inspection report to which petitioner refers in her reply is dated June 16, 2018 and petitioner provides no explanation as to why this document could not have been submitted with her reply, which was served by mail on June 27, 2018 (see Appeal of Easter, 57 Ed Dept Rep, Decision No. 17,174).  Therefore, I decline to accept petitioner’s additional evidence (see Appeal of Easter, 57 Ed Dept Rep, Decision No. 17,174).

To the extent petitioner requests that I conduct an investigation into the incident giving rise to the discipline challenged in this appeal, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893). 

To the extent petitioner challenges the imposition of the suspensions, 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 served the suspensions in February 2018, thereby rendering a request to vacate the suspensions moot.  However, petitioner requests that the suspensions be expunged from the student’s record.  Therefore, to the extent petitioner seeks expungement, these claims remain live (Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of D.O., 53 id., Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

Turning to the merits, petitioner does not contest that the student kicked the vending machine, admitting that the student’s behavior was “unacceptable” and that the student “readily admitted to the school principal that she kicked the vending machine ....”  However, although not entirely clear from the petition, petitioner appears to seek the expungement of both the in-school and out-of-school suspensions from the student’s record  because the language used by respondent to describe the incident in the written notices was inaccurate, either because the student lacked the intent to pull the fire alarm or because respondent contributed to the incident by allegedly placing the vending machine in front of the fire pull, and that the “infractions” were not “commensurate” with the student’s conduct.

To the extent petitioner claims that the notices of suspension were inadequate as a matter of due process, this argument is without merit.  In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1]; 8 NYCRR §100.2[l][4]; Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).  The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1]; 8 NYCRR §100.2[l][4]).

There is no requirement that a disciplinary notice cite a specific provision of respondent’s code, even in the case of a long-term suspension of more than five days (Appeal of S.Z. and K.Z., 52 Ed Dept Rep, Decision No. 16,384; Appeal of L.L., 45 id. 217, Decision No. 15,306).  With respect to a long-term suspension, the notice of charges need only be sufficiently specific to provide the student with enough information to prepare an effective defense (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of L.L., 45 Ed Dept Rep 217, Decision No. 15,306). 

In the case of a short-term suspension of five days or less, the notice must describe the incident or incidents for which suspension is imposed (8 NYCRR §100.2[l][4]) so that the student may present his or her version of events and exercise the right to question complaining witnesses at an informal conference (Education Law §3214[3][b][1]; 8 NYCRR §100.2[l][4]; Appeal of N.C., 56 Ed Dept Rep, Decision No. 17,001; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).

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).   

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884). 

As summarized and quoted above, both of the February 12, 2018 letters notifying petitioner of the in-school suspension and out-of-school suspension described the incident and conduct for which suspension was imposed.  Therefore, I find that these letters afforded petitioner with adequate notice of the incident and the nature of the charges.[2] 

The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; M.M. and L.M., 58 Ed Dept Rep, Decision No. 17,534; Appeal of M.J., 57 id., Decision No. 17,292; Appeal of L.J., 50 id., Decision No. 16,195; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694; Appeal of D.M. and C.M., 45 id. 335, Decision No. 15,339; Appeal of D.F., 39 id. 795, Decision No. 14,383).

Further, 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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909). 

In this case, it is undisputed that the student kicked a vending machine.  Indeed, as noted above, the student admitted to such conduct and where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).

However, petitioner appears to argue that the penalty imposed was excessive because the student was unaware that a fire alarm was located behind the vending machine and the placement of this particular fire alarm violated a State or local fire code.  In denying petitioner’s appeal, respondent stated that: “[m]aking intentional contact with a vending machine with great force can have negative consequences.”  In an affidavit, the principal states that “a Level IV infraction of initiating a report warning of fire without valid cause does not require that the student actually intended to initiate such report” (internal quotations omitted).  Petitioner herself admits that the student’s conduct was “unacceptable” and “deserve[d] a response commensurate with the behavior.”  In this case, the student admitted that she kicked a school vending machine, which is unacceptable behavior; the fact that the student may not have been aware of the placement of and/or did not intend to set off the fire alarm does not excuse such conduct or diminish its seriousness (see Appeal of Esther F., 39 Ed Dept Rep 357, Decision No. 14,258).  Whether or not respondent complied with State or local fire codes is irrelevant to this inquiry; the issue is whether the student’s conduct violated respondent’s code of conduct and whether the penalty imposed was excessive.  On this record, I cannot conclude that a single day of in-school suspension and a single day of out-of-school suspension for kicking a vending machine was so excessive as to warrant substitution of my judgment for that of respondent (cf. Appeal of L.L., 56 Ed Dept Rep, Decision No. 16,989).[3]

     In light of this determination, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] The record does not include a copy of this letter.

 

[2] While there is no information in the record suggesting that the language in these notices is contained in the student’s educational record, to the extent petitioner intends to request that respondent amend the student’s record because these descriptions are inaccurate, the amendment of student records is governed by the federal Family Educational Rights and Privacy Act (“FERPA”) (20 USC §1232[g]) and its implementing regulations (see 34 CFR §§99.20, 99.21, 99.22).  Specifically, 34 CFR §99.20 provides that a parent or eligible student who believes that the student’s record contains information that is inaccurate, misleading or in violation of the student’s right to privacy may request that his or her school district amend the record and, if denied, may request a hearing pursuant to 99 CFR §§99.21 and 99.22.  The Commissioner lacks jurisdiction to consider FERPA claims involving the accuracy of the contents of student records (Appeal of S.C., 58 Ed Dept Rep, Decision No. 17,571; Appeal of V.S., 58 id., Decision No. 17,508; Appeal of A.R. and R.R., 57 id., Decision No. 17,379).  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 USC §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286).

 

[3] Having reached this determination, I need not consider whether sounding of the fire alarm was a foreseeable consequence of the student’s actions.