Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his mother, from action of the Board of Education of the Niagara Wheatfield Central School District regarding student discipline and application for the removal of superintendent Daniel Ljiljanich.

Decision No. 17,810

(January 24, 2020)

Harris Beach, PLLC, attorneys for respondent, Tracie L. Lopardi, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Niagara Wheatfield Central School District (“respondent”) to suspend her son (“the student”)[1] and additionally seeks the removal of respondent’s superintendent, Daniel Ljiljanich.  The appeal must be dismissed and the application must be denied.

At all times relevant to this appeal, the student attended respondent’s high school.  On or about October 16, 2018, the student engaged in a physical altercation with another student (“student A”) and directed offensive comments at student A.

By letter dated October 17, 2018, respondent’s superintendent indicated that the student had been suspended for five days[2] and advised petitioner that a long-term suspension hearing would be convened on October 23, 2018 to determine whether an additional period of suspension was warranted based upon the allegation that the student violated two provisions of respondent’s code of conduct:

• [C]ommitting an act of violence ... upon another student ....  More specifically, [the student] body checked [student A], who presents as a male student to her friends, into the lockers and punched her in the stomach knocking her to the floor.
• Discrimination .... More specifically, as [the student] was restrained from continued physical aggression, [the student] is reported to have said, “that’s no boy ... whatever it is, she can’t go around saying she’s a boy.”

The long-term suspension hearing was held on October 25, 2018.[3]  At the hearing, the student admitted that he had sought out student A, stating:  “I walked from lunch to one of the halls that ... student [A] was in, and I approached her, and body checked her, and then punched her in the gut, dropping her to the floor....”  The student further acknowledged that he had stated that student A “wants to be a boy” and that “she wants to be a he.”  The student asserted that he had sought out student A in order to confront student A about unflattering rumors that student A had allegedly been spreading about the student.

In a written recommendation dated October 26, 2018, the hearing officer found substantial and competent evidence to support the charge that the student committed an act of violence, but he did not find such evidence to support the charge alleging that the student engaged in discrimination.  The hearing officer recommended that the student be suspended through December 11, 2018, with the possibility that the student could return to school effective November 15, 2018 if he successfully participated in professional counseling to address his behavior.[4]

By letter dated October 29, 2018, the superintendent notified petitioner that he had adopted the hearing officer’s recommendations regarding guilt and penalty.  By letter dated October 29, 2018, petitioner appealed the superintendent’s determination to respondent.  By letter dated November 8, 2018, respondent upheld the superintendent’s determination.  This appeal ensued.

Petitioner asserts that the penalty imposed was excessive and did not take into account the student’s mental health issues or the fact that he was found guilty of only one of the two charges against him.  For relief, petitioner requests a determination that the student’s fight was a result of his “mental health diagnoses”; that the student’s record be expunged regarding the long-term suspension; that I conduct investigations into various aspects of respondent’s allegedly inappropriate actions; and that I discipline the superintendent and remove him from office based upon his allegedly inappropriate behavior in this matter.

Respondent asserts that the appeal must be dismissed for improper service of the petition; failure to demonstrate a clear legal right to the relief requested; and failure to demonstrate that respondent’s actions were arbitrary or capricious.  Respondent further asserts that much of the relief requested, including the investigations, is beyond the authority of the Commissioner to grant.  Respondent also contends that the Commissioner does not have jurisdiction over issues concerning the manifestation team’s determination that the student’s actions were not a manifestation of his disability.

I must first address several procedural issues.  Respondent asserts that petitioner’s reply must be rejected because it fails to comply with the Commissioner’s regulations.  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.  Nor have I considered petitioner’s new requests for relief that are raised for the first time in her reply.

The appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

The record indicates that petitioner failed to personally serve any individual authorized under 8 NYCRR §275.8(a) to accept service on behalf of the school district.  According to petitioner’s affidavit of service, the petition was served upon “Janette Ball.”  In an affidavit, Ms. Ball – who is the superintendent’s secretary – describes the circumstances under which she received the petition:

When I arrived at the reception area, I identified myself as Jan Ball, and I made it very clear that I was the Secretary to the Superintendent [emphasis in original].  The delivery woman did not identify herself to me.  Instead, she just handed me [a] grouping of papers.  I do not recall her saying anything when she handed me the papers ....  I took the papers she handed me, and I asked her if I needed to sign anything.  In response, she said “no.”  This was the extent of our interactions; I did not make any representations as to whether I was authorized to accept service of legal papers on behalf of the Superintendent or the District. ... I am not the District Clerk, nor am I a trustee or member of the Board of Education, nor am I the Superintendent of Schools.  I have also never been designated by the Board of Education to accept service on behalf of the District.

Petitioner includes with her reply an email, dated November 9, 2018, from the district clerk to petitioner, stating, “Please be advised any legal notices should be delivered to myself, or in my absence, Jan Ball.”  Accordingly, petitioner asserts that the superintendent’s secretary (i.e., Ms. Ball) was designated to accept service of the petition.  Even if I were to accept petitioner’s argument that Ms. Ball was designated to accept service on behalf of respondent, the district clerk’s email clearly states that any such designation would be effective only “in [the district clerk’s] absence.”  Petitioner does not assert, and there is nothing in the record to indicate, that any attempt was made to serve the district clerk (or any other duly authorized individual) prior to delivering the papers to the superintendent’s secretary.

When there is no proof that an individual has been authorized to accept service on behalf of the respondent, service on that individual is improper and the appeal must be dismissed (Appeal of DeMarco, 48 Ed Dept Rep 252, Decision No. 15,850; Appeal of Baker, 47 id. 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654).  On this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with section 275.8(a) of the Commissioner’s regulations, and the appeal must therefore be dismissed.

Even if the appeal were not dismissed for improper service, it would be dismissed on other grounds.  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).

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; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).  Where a student admits the charged conduct, as is the case in this appeal, 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).

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).  Here, the student admitted to seeking out, body checking, and punching student A.  In light of his admitted conduct, I cannot conclude that the penalty imposed was excessive (see e.g. Appeal of N.F., 58 Ed Dept Rep, Decision No. 17,598 [six-week suspension upheld for placing a student in a chokehold and pushing him against a locker]; Appeal of T.A., 58 id., Decision No. 17,566 [41-day suspension upheld for pushing a staff member, which caused the staff member to fall to the ground and sustain injuries]; Appeal of J.D., 57 id., Decision No. 17,323 [five-month suspension based on admission of guilt as to charge of assault with physical injury or threat of injury on school property]).  Physical violence in public schools cannot be tolerated, and respondent was well within its discretion to impose what amounts to approximately a six-week suspension given the student’s conduct (see e.g. Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,323; Appeal of R.C., 49 id. 275, Decision No. 16,023).

Petitioner further asserts that the long-term suspension should be expunged from the student’s record “due to the fact that this extension appears to be based on the violation of a discriminatory act which was not found substantiated.”  Petitioner, however, presents no evidence that the long-term suspension was based on any factors beyond the student’s admitted violation of respondent’s code of conduct, which prohibits students from engaging in violent conduct.  The hearing officer, superintendent, and board based their determination only on the student’s admitted guilt to engaging in an act of physical violence.  Accordingly, this claim is without merit.

Petitioner also requests “a determination that [the student’s] fight was ... a result of his mental health diagnoses as he had been diagnosed by a psychiatrist and the fight was a result of his impulse control and Borderline Personality diagnoses.”  This claim must be dismissed.  The record indicates that the student was not identified as a student with a disability and that the district had no reason to suspect that he had a disability prior to the October 16, 2018 altercation.  Moreover, although petitioner requested an evaluation from respondent’s committee on special education (CSE) to determine whether the student was eligible for special education, this occurred after the conclusion of the long-term suspension hearing on October 29, 2018.  Thus, respondent did not err in declining to treat the student as a student suspected of having a disability (Appeal of J.D., 57 id., Decision No. 17,323).

In any event, the record reflects that respondent, in fact, conducted a manifestation determination concerning the disciplinary incident at issue in this appeal.  Following an October 30, 2018 conversation with respondent’s director of special programs (“director”), petitioner elected to withdraw her request for a CSE evaluation and instead pursued certain accommodations for the student pursuant to section 504 of the Rehabilitation Act of 1973 (“section 504”).  Respondent’s section 504 committee thereafter developed an accommodation plan for the student at a meeting held on November 9, 2018.  Following the November 9 meeting, petitioner renewed her request for a CSE evaluation of the student.[5]  Then, on November 14, 2018, the section 504 committee held a manifestation determination meeting and concluded that there was “no nexus” between the student’s mental health diagnoses and the misconduct that led to his suspension.

To the extent that petitioner challenges the section 504 committee’s determination that the student’s misconduct was not the result of his mental health diagnoses, I lack jurisdiction to review any such claim.  Enforcement of section 504 is within the exclusive jurisdiction of the federal courts, the United States Department of Justice and the United States Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,676; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369).  I likewise lack jurisdiction over any claims arising out of the Individuals with Disabilities Education Act (“IDEA”), as claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC §1415), Education Law §4404 and §200.5(j) of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).  Therefore, to the extent this issue is raised in the instant appeal, it is dismissed for lack of jurisdiction.

Petitioner also requests that I conduct investigations into various aspects of respondent’s allegedly inappropriate actions and that I discipline the superintendent and remove him from office based upon his allegedly inappropriate behavior in this matter.  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).  Accordingly, I have no jurisdiction to direct the various investigations that petitioner seeks.

Finally, to the extent that petitioner seeks removal of the superintendent, other than her conclusory assertions, the petition is completely devoid of any evidence that the superintendent violated the Education Law or any other act pertaining to common schools, let alone engaged in a willful violation of such laws (see Appeals of Hadden, 57 Ed Dept Rep, Decision No. 17,253).  Additionally, petitioner did not name the superintendent as a respondent or personally serve him with a copy of the petition, nor did she comply with the specialized notice requirements for removal applications pursuant to section 277.1(b) of the Commissioner’s regulations (Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  Because the notice of petition serves to alert a party to the fact that he or she is the subject of a removal proceeding, a notice of petition that fails to contain the required language is fatally defective and does not secure jurisdiction over the respondent (Appeal of D.B., 58 Ed Dept Rep, Decision No. 17,449; Application of Carrion, 50 id., Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050).  Therefore, petitioner’s removal application must be denied.

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

THE APPEAL IS DISMISSED.

END OF FILE