Decision No. 18,002
Appeal of J.M., on behalf of his son, from action of the Board of Education of the Monroe-Woodbury Central School District regarding student discipline and bullying.
Decision No. 18,002
(June 14, 2021)
Andrea N. Catalina, Esq., attorney for petitioner
Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel
ROSA., Commissioner--Petitioner appeals from action of the Board of Education of the Monroe-Woodbury Central School District (“respondent”) to impose discipline upon his son (“the student”). Petitioner further asserts that the student was subjected to bullying and harassment in violation of the Dignity for All Students Act (“DASA”). The appeal must be dismissed.
During the 2019-2020 school year, the student attended high school in respondent’s district. On March 6, 2020 the student was involved in a physical altercation with another student (“student 2”) in a stairwell of the high school. In an incident report completed by the student on the day of the altercation, the student reported that he “went to the bathroom at 11:43-44 a.m. ... friends were in the bathroom they left I walk to the staircase they were waiting for me [student 2] swong first I hit back” (sic). The student also detailed a number of incidents that occurred prior to that date, suggesting that the March 6, 2020 altercation was part of a larger pattern of harassment by one or more students.
In a letter dated March 9, 2020, the high school principal advised petitioner that the student would be suspended from school for five days for violating the district’s code of conduct. The letter indicated that the student had engaged in a fight with another student at school. The letter further indicated that the student would serve the suspension from March 11 through March 17, 2020. Petitioner and the principal subsequently agreed to postpone the suspension pending an informal conference, which took place on March 12, 2020.
In a letter dated March 12, 2020, the principal reiterated that the student would be suspended from school for five days for violating the district’s code of conduct by engaging in a fight with another student. The letter indicated that the student would now serve his suspension from March 12 through March 18, 2020.
Petitioner appealed the student’s suspension to the superintendent on March 16, 2020. In a letter dated July 1, 2020, the superintendent dismissed petitioner’s appeal. Petitioner then appealed to respondent, which similarly dismissed the appeal. This appeal ensued.
Petitioner contends that the superintendent failed to respond to petitioner’s March 16, 2020 appeal within 10 days as required by the district’s code of conduct. Petitioner further argues that the student’s suspension was disproportionate given the student’s circumstances as well as those that preceded the fight. Petitioner also maintains that respondent district failed to investigate incidents of bullying and harassment directed toward the student that occurred in February and March 2020. For relief, petitioner requests that the student’s five-day suspension be expunged from his record.
Respondent contends that the superintendent’s delayed response to petitioner’s March 16, 2020 appeal was justified due to the “unpredictable, chaotic and unprecedented circumstances” of the COVID-19 pandemic. Respondent further maintains that its decision to suspend the student was based on competent and substantial evidence. Respondent argues that the penalty imposed on the student was proportionate to the severity of the altercation, which respondent describes as a “planned fight.” Respondent further indicates that it is currently investigating a DASA complaint concerning petitioner’s allegations of bullying and harassment.
First, I must first 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 petitioner’s 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.
Respondent has also submitted additional evidence with its memorandum of law. A memorandum of law should consist of arguments of law (8 NYCRR 276.4). It may not be used to add belated assertions or exhibits not included in the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799). Therefore, I decline to consider this additional evidence.
Next, I must address the scope of my review in this appeal. In the petition, petitioner raises arguments that he did not raise in his written appeal to respondent below, including a suggestion that the student acted in self-defense. Respondent’s policies require that a short-term suspension be appealed to the superintendent and board, in writing, prior to commencement of an appeal pursuant to Education Law § 310. Petitioner availed himself of such an opportunity, arguing only that the superintendent’s decision was untimely, and that the penalty was excessive under the circumstances. Therefore, I find that any other claims raised in the petition may not be considered in this appeal under Education Law § 310 (Appeal of L.Z. and M.S., 56 Ed Dept Rep, Decision No. 17034; see generally Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451; Appeal of D.V., 44 id. 263, Decision No. 15,168).
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).
Petitioner argues that he is entitled to relief because the superintendent, in violation of board policy, took an inordinate amount of time to resolve his appeal. As indicated above, petitioner submitted the appeal on March 17, 2020, and the superintendent issued a decision on July 1, 2020. Respondent’s policy indicates that the superintendent “shall issue a written decision regarding the Appeal within ten (10) business days of receiving [an] Appeal” of a short-term suspension. Thus, under the terms of the policy, the superintendent should have issued a decision by March 31, 2020.
I cannot find that the superintendent’s delay entitles petitioner to expungement of the student’s suspension. The superintendent had until March 31, 2020 to render a timely decision, 13 days after the student had served his suspension. Thus, although the superintendent issued her decision approximately three months late, the student did not serve any additional period of suspension as a result of this delay. Therefore, I find that petitioner has failed to demonstrate that he was prejudiced by the delay (see generally Erdos v. N.Y. State Dep’t of Educ., 105 AD2d 504, 504-05 [3d Dept 1984] [party must, at a minimum, demonstrate “substantial prejudice” arising from administrative delay to be entitled to relief]; Matter of D & D Mason Contractors, Inc. v. Smith, 81 AD3d 943, 944-45 [2d Dept 2011] [“[T]he lapse of time in rendering an administrative determination, standing alone, does not constitute prejudice as a matter of law ....”]).
Additionally, respondent has presented a reasonable explanation for such delay. As a result of the COVID-19 pandemic, the Governor issued an Executive Order directing all schools within New York State to close as of March 18, 2020; i.e., the day after petitioner submitted his appeal to the superintendent. The record further reflects that the superintendent communicated with petitioner in March, May, and June concerning his appeal. Therefore, even if petitioner had demonstrated substantial prejudice arising from the delay, respondent had a reasonable basis for the delay (see Appeal of M.P. and T.P., 60 Ed Dept Rep, Decision No. 17,937; Appeal of G.K., 60 id., Decision No. 17,908).
Petitioner next claims that the suspension imposed upon the student was excessive. 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 shocking to one’s sense of fairness 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; see generally Hogan v. Bd. of Ed. of N. Colonie Cent. Sch. Dist., 83 AD2d 729, 730 [3d Dept 1981]).
The record reflects that the student engaged in a physical altercation with a classmate. Physical violence inherently threatens the safety, health, and welfare of other students and should not be tolerated (Education Law § 3214 (3) (a); see e.g. Appeal of a Student Suspected of Having a Disability, 59 Ed Dept Rep, Decision No. 17,810). As such, I cannot find a five-day suspension for participating in a physical altercation to be shocking to one’s sense of fairness (Appeal of a Student Suspected of Having a Disability, 59 Ed Dept Rep, Decision No. 17,810; Appeal of T.A., 58 id., Decision No. 17,566; Appeal of C.B.R., 57 id., Decision No. 17,211).
Petitioner nevertheless argues that the student’s conduct warranted a lesser penalty because it was the student’s first instance of discipline, he has excellent attendance, good grades, and reported the incident himself. Although the student has a previously unblemished record, this does not necessarily mean that he is entitled to receive a lesser penalty than would otherwise be imposed for a particular offense (Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159; Appeal of Lutes, 25 id. 396, Decision No. 11,624). Thus, even considering the mitigating factors presented by petitioner, I decline to reverse respondent’s determination that a five-day, out-of-school suspension was an appropriate penalty.
Petitioner also contends that the student deserves a lesser penalty because he was “the victim of a series of bullying [incidents].” The record reflects that this allegation is the subject of a separate investigation by respondent under DASA. That investigation was ongoing at time this appeal was commenced, and there is no evidence in the record that it has concluded. Therefore, petitioner’s claim that the student’s suspension was the product of bullying or harassment is premature and must be dismissed (Appeal of A.G., 56 Ed Dept Rep, Decision No. 17,084). Only respondent’s final decision may be appealed to the Commissioner under Education Law § 310 (e.g. Appeal of Y.O., 59 Ed Dept Rep, Decision No. 17,842).
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 DISMISSED.
END OF FILE
 This statement has been reproduced as it appeared in the initial document.
 This internal appeal requirement is permissible. Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of J.H. and R.H., 57 Ed Dept Rep, Decision No. 17,317; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578).
 In this respect, I note that although a finding of bullying or harassment would not affect the student’s guilt in this matter (Appeal of D.F. and N.F., 57 Ed Dept Rep, Decision No. 17,026), nothing would preclude respondent, upon reaching such a conclusion, from expunging the suspension described herein as a remedy “reasonably calculated to end the harassment, bullying, and/or discrimination, eliminate any hostile environment, create a more positive school culture and climate [or] prevent recurrence of the behavior” (Education Law § 13  [e]; 8 NYCRR § 100.2 [kk]  [iv]).