Decision No. 17,845
Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Bay Shore Union Free School District regarding student discipline and the Dignity for All Students Act.
Decision No. 17,845
(June 3, 2020)
Ingerman Smith, LLP, attorneys for respondent, Diana M. Cannino, Esq., of counsel
TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) to impose discipline on his son (“the student”). Petitioner further appeals respondent’s actions regarding a Dignity for All Students Act (“DASA”) complaint. The appeal must be sustained in part.
The student attended 11th grade at respondent’s high school during the events described herein. Respondent’s district allows students to dress up in costumes for Halloween. On or about October 31, 2018, the student arrived at school dressed in a “World War II style military uniform, including boots, a hat and a mustache.” According to petitioner, the student’s costume depicted Joseph Stalin; however, petitioner acknowledges that some students and faculty at the high school believed that the student intended to depict Adolf Hitler.
As relevant here, after a faculty member expressed concern about the student’s costume, a teacher asked the student if he was trying to portray Hitler. The student responded that he was depicting Stalin. The teacher then asked to speak to the student in private, and they proceeded to the “science prep room.” The teacher questioned the student as to the appropriateness of portraying Stalin, and – although the parties disagree as to exactly what was said by the teacher and the student during this interaction – the record reflects that the student became defensive and challenged the teacher’s knowledge of history. Following this conversation, respondent indicates that the student exited the science prep room, slammed a door, yelled, and ripped off his moustache. The teacher then informed the student that the high school’s dean of students would decide whether his costume was appropriate. Respondent indicates that the student “began yelling” for the teacher to “leave him alone.” The student was thereafter escorted by another faculty member to meet with the dean. After meeting with the dean, the student removed “the discernable parts of his costume.”
At the end of the school day on October 31, 2018, while the student was on the bus waiting to go home, another pupil advised the student that the teacher had addressed the student’s costume during a later class, in which the student was not present.
Upon learning of the day’s events, petitioner called the high school principal (“principal”) on October 31, 2018 and requested that the teacher be relieved of his teaching duties pending an investigation into his conduct. Petitioner also requested a meeting with the principal the following day. The principal advised petitioner that he would not remove the teacher from the classroom and would only meet with petitioner after investigating the incident.
On November 1, 2018, the principal spoke to the teacher and two other faculty members who witnessed the events on October 31. According to an affidavit of the principal submitted with this appeal, the teacher and other witnesses described the student’s “inappropriate costume, the reaction and concern of the students, and [the student’s] insubordinate and aggressive behavior towards [the teacher].” The witnesses further indicated that the student’s behavior “ultimately resulted in his removal from the classroom.” The principal also indicates in his affidavit that the teacher advised him “that students in his later period classes were asking if a student had come to school dressed as Hitler,” and that, in response, he told them that the student “was not dressed as Hitler and that the situation had been resolved.” The principal also spoke with the student during his investigation, who told the principal that he and his friends had all chosen to dress as historical figures for Halloween.
On November 2, 2018, the principal met with the teacher, the assistant principal, and the student’s parents (petitioner and his spouse) to discuss the October 31 incident. During the meeting, the student waited in a reception area. According to the principal, the student’s parents were “given the option” for the student to participate in the meeting but “agreed to begin without the student present.” Petitioner disputes this claim and alleges that the principal “refused” to allow the student to attend the meeting.
During this meeting, the principal informed petitioner that the student would serve detention as a result of his conduct on Halloween; namely, when he “failed to comply with the reasonable directions of [the teacher,] demonstrated great disrespect towards [the teacher,] and disrupted the classroom environment.” After the principal stated that the student had not “shown restraint” during the incident, the student entered the room. According to petitioner, the student “opened the door and addressed the ... principal in an upset manner.” According to the principal, the student “shout[ed] at [him] with a pointed finger, ‘Do you know how much restraint it took not to punch that b**** in the face?’” The student was then escorted out of the room by petitioner. The principal was later informed by staff that the student was observed recording the meeting with his cell phone, an alleged violation of the school’s electronic device policy.
On or about November 5, 2018, the principal’s office scheduled a second meeting with petitioner. According to petitioner, he was informed that the purpose of the meeting was to “follow-up” on the November 2, 2018 meeting. According to the principal, he told petitioner that he was contemplating a short-term suspension for the student’s conduct during the November 2, 2018 meeting.
The second meeting took place on November 6, 2018, at which time the principal informed petitioner of his intent to suspend the student for two days as a result of his conduct during the November 2, 2018 meeting. According to petitioner, the principal conveyed this information “verbally.”
The record contains a written notice of short-term suspension dated November 7, 2018. The principal asserts that he prepared a draft of this notice prior to the November 6, 2018 meeting and amended it “upon the student’s review.” According to the principal, the student indicated that the earlier draft did not accurately reproduce the statement he made during the November 2, 2018 meeting. On November 7, 2018, the written notice was hand-delivered to the student’s home address. The student served the two days of out-of-school suspension on November 7 and November 8, 2018, and his one day of detention on November 9.
On or about November 8, 2018, the principal received a letter from petitioner addressed to respondent’s superintendent alleging a violation of DASA. Specifically, petitioner alleged that, on October 31, 2018, the teacher harassed, intimidated, and bullied the student. Although petitioner asserted in his letter that the issue had been “addressed ... at the building level without resolution,” the principal indicates that the letter was forwarded to him for review because “it concerned the first reporting of an alleged violation of [DASA].” The principal states that he then conducted a second investigation of the October 31, 2018 incident, this time “through a DASA lens,” which involved reviewing his notes from the prior investigation, interviewing each faculty member involved, and speaking to the dean concerning his earlier conversations with students who had witnessed the October 31, 2018 incident. The principal concluded that no incident of bullying or harassment had taken place.
By letter dated November 14, 2018, the principal summarized his findings and advised petitioner that the matter had been “addressed, mediated and documented ... in accordance with district policy.” The principal further indicated that staff members were “advised to seek additional administrative ... support regarding potential disciplinary and/or behavioral concerns involving [the student] in the future ... in order to avoid any subsequent incidents.”
Also, on November 14, 2018, petitioner attended a board meeting to address the status of his DASA complaint and the district’s DASA policies. According to the record, respondent’s superintendent thereafter provided petitioner with the contact information for respondent’s DASA coordinator.
On or about November 16, 2018, petitioner appealed the principal’s disciplinary determination to the superintendent. By letter dated November 27, 2018, the superintendent upheld both the detention and out-of-school suspension. Petitioner then appealed to respondent, which denied petitioner’s appeal by letter dated February 7, 2019.
By letter dated November 30, 2018, petitioner appealed the principal’s November 14, 2018 DASA determination to the DASA coordinator. By letter dated December 21, 2018, the DASA coordinator informed petitioner that, based on his review of the investigation, no DASA violation had occurred. The DASA coordinator further indicated that, as indicated in the principal’s initial determination, remedial measures had been put into place to address petitioner’s concerns. Petitioner then appealed to respondent, which denied petitioner’s appeal by letter dated February 7, 2019. This appeal ensued.
Petitioner argues that the student’s due process rights were violated with respect to the detention and out-of-school suspension because the student was not allowed to sit in on the November 2, 2018 meeting. Petitioner also asserts that the two-day out of school suspension was excessive according to respondent’s code of conduct. He further alleges that respondent failed to provide him with prior written notice of the suspension and to apprise him of his right to appeal the district’s disciplinary determination. With respect to his DASA complaint, petitioner alleges that the district failed to provide the contact information for the DASA coordinator, conduct a proper investigation, and provide a hearing on petitioner’s DASA appeal. For relief, petitioner requests that the student’s detention and suspension be expunged from his record and that respondent’s code of conduct be revised to include appeal procedures for disciplinary actions. Petitioner further requests that I review respondent’s DASA procedures and provide guidance to ensure respondent investigates all DASA complaints and that a “proper” DASA investigation “be done by an agency other than” respondent or conducted “under the supervision of an outside agency.”
Respondent argues that petitioner has not demonstrated that the decision to uphold the detention and the two-day out of school suspension was arbitrary, capricious, or contrary to law. Respondent maintains that the imposed discipline was in accordance with the student’s due process rights and not excessive for the violations to which the student admitted. Respondent further argues that its decision to deny petitioner’s DASA appeal was not arbitrary or capricious and that the district conducted an appropriate DASA investigation. Respondent also avers that petitioner’s request for further oversight and investigation, or creation of an investigative entity, is outside of the scope of the Commissioner’s jurisdiction.
I must initially address several preliminary matters. First, petitioner’s request that I arrange for a DASA investigation to be conducted “by an agency other than” respondent or conducted “under the supervision of an outside agency” is outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310 (Appeal of J.S., 58 Ed Dept Rep, Decision No. 17,509). An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of J.S., 58 Ed Dept Rep, Decision No. 17,509; Appeal of Huffine, 48 id. 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).
Second, respondent argues that petitioner’s reply should be disregarded to the extent it alleges new facts or repeats allegations contained in the petition. 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.
Third, petitioner indicates that the district has violated the federal Family Education Rights and Privacy Act (“FERPA”) and New York State Freedom of Information Law (“FOIL”). The Commissioner lacks jurisdiction to consider FERPA claims. The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 USC §1232g; 34 CFR Part 99; Appeal of Kosack, 53 Ed Dept Rep, Decision No. 16,611; Appeal of G.H.L., 46 id. 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509). I also lack jurisdiction over petitioner’s FOIL claims. Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747). Therefore, I have no jurisdiction to address the FERPA or FOIL allegations raised in this appeal.
Turning to 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 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).
First, with respect to petitioner’s request that the student’s “detention be expunged from his record,” in-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; Appeal of D.K., 48 id. 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700). 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 M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; Appeal of D.K., 48 id. 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700). Petitioner alleges that the student’s due process rights were violated insofar as the principal did not permit the student to participate in the November 2, 2018 meeting, during which the principal informed petitioner that the student would receive detention for the October 31, 2018 incident. In an affidavit, the principal states that petitioner and the student’s mother “agreed to begin [the meeting] without the student present.” Petitioner, in his reply, contends that:
Prior to going into the conference room ... [I] stated to [the] Principal ... that [I] and [my] wife didn’t know if the administrators wanted [the student] to be present in the meeting ... [the] Principal answered that he did not want [the student] present and that he should remain in the waiting room.
Even accepting petitioner’s version of the disputed events, petitioner has not established, on this record, that the student was denied an opportunity to discuss the conduct with the person or body authorized to impose the discipline. At best, the evidence concerning this issue is in equipoise. Since petitioner has the burden of proof, he has failed to meet that burden to establish his claim (see Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296).
With respect to the student’s short-term suspension, 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[b], 8 NYCRR §100.2[l]; 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[b], 8 NYCRR §100.2[l]).
The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension. This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (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).
Petitioner asserts that he did not receive written notice of the suspension until November 7, 2018, “after the suspension was already being served.” The only copy of the written notice of suspension in the record is dated November 7, 2018, one day after the informal conference. Although respondent indicates that this is a “corrected” version that was issued after petitioner and the student had reviewed an earlier draft of the written notice, respondent has not submitted any evidence to support this assertion. Tellingly, while the principal indicates that he “prepared ... [a] written notice ... [p]rior to this meeting,” he does not directly state that he provided written notice to petitioner prior to, or during, the November 6, 2018 meeting. Therefore, I find that respondent failed to provide petitioner with legally sufficient written notice prior to imposing the out-of-school suspension. As such, the student’s short-term suspension must be expunged from his record (Appeal of C.B., 59 Ed Dept Rep, Decision No. 17,840; Appeal of T.M., 57 id., Decision No. 17,309; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).
Petitioner also argues that the principal failed to notify him of his right, pursuant to board policy, to appeal the principal’s short-term suspension to the superintendent. Petitioner is correct that, pursuant to respondent’s code of conduct, a principal must notify parents of their right to appeal a short-term suspension to the superintendent within 10 business days. However, although the record does not reflect that the principal advised petitioner of his right to appeal, petitioner did, in fact, appeal in a timely matter, and the superintendent considered and denied petitioner’s appeal. I therefore find that the principal’s failure to notify petitioner of his right to appeal was harmless error.
Turning to petitioner’s claims concerning his DASA complaint, Education Law §13(1)(d) requires that a principal, superintendent, or designee “lead or supervise [a] thorough investigation of all reports of harassment, bullying and discrimination” (Appeal of A.G., 56 Ed Dept Rep, Decision No. 17,084). Pursuant to respondent’s policy, a DASA complaint must first be investigated at the building-level by the principal or principal’s designee. A complainant who is unsatisfied with the results thereof may then request a district-level investigation, to be completed by the superintendent or superintendent’s designee. Finally, the complainant may appeal the district-level determination to the board.
In this case, a review of the record shows that the principal conducted the initial, building-level investigation of petitioner’s DASA complaint. According to the principal, this investigation entailed reviewing his notes from the prior student discipline investigation – which he generated after interviewing the student, the teacher, and other faculty witnesses – and speaking to each faculty member again as well as to the dean, who had spoken with students who had witnessed the October 31, 2018 incident. The principal ultimately determined that no DASA violation occurred, and he notified petitioner of his findings by letter date November 14, 2018. Although petitioner contends that the November 14, 2018 determination letter “contains no mention of ... petitioner’s DASA complaint” (emphasis omitted), the letter indicates, on its face, that it is being issued “[i]n response to recent concerns that [petitioner] raised relative to claims of [the student] being verbally bullied and/or harassed.” Further, although petitioner avers that the principal’s letter failed to advise him of his right to appeal, neither DASA nor respondent’s DASA policies impose any such requirement (see Appeal of R.E., 56 Ed Dept Rep, Decision No. 17,003).
The record further reflects that, after petitioner appealed the principal’s determination, the district-level review of petitioner’s DASA complaint was completed by respondent’s DASA coordinator, the superintendent’s designee. Petitioner maintains that, because he sent his DASA complaint to the superintendent in the first instance, the superintendent was required to conduct the investigation. Contrary to petitioner’s contention, however, respondent’s policy provides that the district-level instigation may be completed by “[t]he [s]uperintendent or his/her designee.”
After the DASA coordinator upheld the principal’s determination that no DASA violation had occurred, petitioner then appealed this determination to respondent, consistent with respondent’s DASA policy. Although petitioner alleges that respondent failed to conduct “any new investigation” during its review of his complaint, respondent’s policy does not contemplate that a new investigation of a DASA complaint will occur at the board level. Rather, the policy requires that, after a DASA complaint is appealed to respondent, the superintendent must provide respondent with “all written statements and other materials” concerning the complaint, reflecting that respondent’s review is appellate in nature.
Petitioner additionally avers that respondent violated its DASA policy insofar as it “never offered or granted a hearing to discuss the  board-level DASA appeal” (emphasis omitted). While respondent’s policy 0115-R contemplates that the board may hold a hearing at the board level, there is no evidence in the record that such a hearing is mandatory. Policy 0155-R merely states that respondent shall notify parties of the time and place of any hearing and hold such hearing “within 15 school days of the receipt of the request” thereof. Therefore, I cannot find that respondent was required to afford petitioner a hearing in connection with his board-level DASA appeal.
With respect to petitioner’s request that I conduct an independent review of respondent’s DASA procedures, I lack jurisdiction to grant such relief. 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).
Finally, to the extent that petitioner alleges that respondent violated its obligation to share the name and contact info of the DASA coordinator pursuant to 8 NYCRR §100.2(jj)(4)(vii), this claim is 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). Although petitioner alleges that he was unable to locate the name and contact info for the DASA coordinator in respondent’s policies or code of conduct or on respondent’s website, petitioner ultimately obtained the DASA coordinator’s contact information, and the DASA coordinator reviewed petitioner’s complaint. Accordingly, there is no meaningful relief that petitioner could be awarded with respect to this claim. Nevertheless, I remind respondent of its obligation under to section 100.2(jj)(4)(vii) of the Commissioner’s regulations to share the DASA coordinator’s information readily with parents and students.
In light of the above disposition, I need not address the parties’ remaining contentions. However, nothing herein should be construed as minimizing the serious safety, social and emotional issues raised by harassment, bullying and discrimination in public schools.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent annul and expunge from the student’s record all references to the student’s short-term suspension on November 7 and 8, 2019.
END OF FILE
 Although not entirely clear from the record, it appears that the student intended this statement to refer to the teacher.
 The record does not contain a copy of the original version of this written notice.
 Petitioner does not raise a challenge to the facial validity of the written notice; i.e., that it apprised him of his rights to an informal conference and to question complaining witnesses.
 Given this conclusion, I need not address whether the suspension was excessive.