Decision No. 17,954
Decision No. 17,954
(January 6, 2021)
The Seubert Law Firm, PLLC, attorneys for petitioners, David E. Seubert, Esq., of counsel
Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq. of counsel
ROSA., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Hilton Central School District (“respondent”) to impose discipline upon their son (the “student”). The appeal must be dismissed.
Given the disposition of this appeal, a detailed recitation of the facts is unnecessary. At all times herein, petitioners’ son was a tenth-grade student in respondent’s district. In a letter dated September 26, 2019, the district charged the student with “conduct endangering the health, welfare, safety and/or morals of others, and disorderly conduct” when
On or around 9/23/2019, [the student] used a vaporizing device containing an intoxicant while on district transportation. Additionally, [the student] touched another female student on parts of her body without her consent. Lastly, [the student] requested that this female student touch his genital area.
In a separate letter dated September 26, 2019, petitioners were advised that respondent would convene a long-term suspension hearing on September 30, 2019. The hearing, presided over by a hearing officer, convened as scheduled. The hearing officer found the student guilty of the charges against him on the record based upon his admission to such charges. Additionally, in a written recommendation dated October 1, 2019, the hearing officer recommended that the student be found guilty of the charges against him and that he be suspended for 20 weeks. The superintendent adopted these recommendations.
On November 4, 2019, petitioners appealed this determination to respondent. In a letter dated November 14, 2019, respondent indicated that, at a meeting on November 12, 2019, it had voted to deny petitioners’ appeal. This appeal ensued. Petitioners’ request for interim relief was denied on December 18, 2019.
Petitioners allege that the student is a student with a disability and that respondent’s discipline of the student violated the Individuals with Disabilities Educational Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). Petitioners further argue that the decision to impose a 20-week out of school suspension was “arbitrary, capricious and grossly out of proportion to the charges ... against him.” Petitioners further contend that the student’s suspension violates 8 NYCRR §201.7(e), which precludes a district from placing a student with a disability in an interim alternative educational setting (“IAES”) for more than 45 days. Petitioners additionally argue that the two-hour daily tutoring afforded to the student while serving his out-of-school suspension is “wholly inadequate.” For relief, petitioners request expungement of the student’s record as well as: (1) “immediate institution” of an individualized education plan (“IEP”) and “Section 504 Evaluation”; (2) “all procedural safeguards” owed to the student as a student with a disability; and (3) “immediate release” of the student to “participate in school sports.”
Respondent contends that petitioners’ IDEA and Section 504 claims must be dismissed for lack of jurisdiction. Respondent further asserts that its suspension of the student was appropriate, and the student has received adequate alternative education.
First, I must address a procedural issue. 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 assertion that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). 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.
To the extent petitioners allege that the student should have been afforded the rights due to a student with a disability, petitioners have failed to meet their burden of proof. 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 at any time prior to or during the long-term suspension hearing. Although petitioners claimed that the student has a disability in their November 4, 2019 appeal to respondent, this occurred after the conclusion of the long-term suspension hearing on September 30, 2019. Thus, respondent did not err in declining to treat the student as a student suspected of having a disability for disciplinary purposes (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,810; Appeal of J.D., 57 id., Decision No. 17,323).
Additionally, to the extent petitioners raise claims under IDEA or Section 504, those claims must be dismissed for lack of jurisdiction. 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 claimed violations of IDEA. 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, these claims are dismissed for lack of jurisdiction.
Turning to the merits, 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 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).
On this record, petitioners have failed to meet their burden of demonstrating a clear legal right to the relief requested. While petitioners allege that, “the decision to remove [the student] for a period of 20 weeks is arbitrary, capricious and grossly out of proportion to the charges leveled against him,” petitioners provide no further explanation of this claim. Petitioners do not contest that, at the long-term suspension hearing, the student admitted that he engaged in the following conduct: (1) use of a vaporizing device containing an intoxicant; (2) touching another student without her consent; and (3) requesting that the student whom he touched touch his genital area. After finding the student guilty of these charges, the district considered the student’s prior disciplinary record, which included similar instances of use or possession of a vaping device as well as two other disciplinary incidents that resulted in short-term suspensions. In light of the conduct to which he admitted and his anecdotal record, I cannot conclude that a 20-week suspension was so shocking to the conscience that I must substitute my judgment for that of respondent (see e.g. Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268).
Finally, petitioners’ claim regarding the provision of alternative instruction services 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). Here, the student has completed the suspension for which he was provided alternative instruction, thus rendering any dispute as to these services moot (Appeal of F.A., 57 Ed Dept Rep, Decision No. 17,383; Appeal of C.B. and B.R., 50 id. Decision No. 16,192).
Even if this claim were not subject to dismissal as moot, it would fail on the merits. Education Law §3214(3)(e) requires school districts to provide alternative instruction to students of compulsory school age who are suspended from school. Alternative instruction must be substantially equivalent to that received by the student prior to the suspension (Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159; Appeal of R.S., 48 id. 215, Decision No. 15,841), and equivalency will be determined on a case-by-case basis (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,833). Previous Commissioner’s decisions have found that two hours per day of alternative instruction may fulfill a district’s obligation under the Education Law (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of A.L., Jr., 42 id. Decision No. 14,833; Appeal of Camille S., 39 id. 574, Decision No. 14,316).
Petitioners contend that two hours of instruction each day is insufficient and that the actual instruction the student received did not permit him to keep pace with his classes. The superintendent explains in an affidavit that the district originally assigned the student to “instructional support” at the district’s tutoring center for two hours per day. Respondent further indicates that the tutoring center is supervised by two certified teachers. Staff observed that the student struggled to complete his homework and bring his materials to the tutoring center. Thus, as of December 2, 2019, respondent assigned the student to “two full days per week.” The superintendent additionally indicates that “the [d]istrict has arranged for [the student] to be home tutored in French for 2 hours per week.” On these facts, I cannot conclude that respondent was remiss in its duty to provide substantially equivalent instruction. As indicated above, two hours of instruction per day generally satisfies a district’s obligations, and petitioners have offered no proof that the instruction provided was not “substantially equivalent” to classroom instruction.
I have considered petitioners’ remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 To the extent petitioners argue that the suspension constituted placement in an IAES and that the instruction provided therein was inadequate, the provisions regarding an IAES do not apply because petitioner was not classified as a student with a disability at any time prior to the long-term suspension hearing (8 NYCRR §§200.6[n], 201.2[k], 201.7[c]).
 In this respect, although petitioners request “immediate release” of the student to “participate in school sports,” they offer no explanation as to why such relief would be warranted.