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Decision No. 13,210

Appeal of CAROL A. DLONIAK, on behalf of her son, ANTHONY, from action of the Board of Education of the Fredonia Central School District regarding student discipline.

Decision No. 13,210

(June 28, 1994)

Michael P. Smith, Esq., attorney for petitioner

Wayne A. Vander Byl, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals a decision of the Board of Education of the Fredonia Central School District ("respondent") disciplining her son. The appeal must be dismissed.

On April 28, 1994, petitioner's son, Anthony, an eighth grade student at respondent's middle school, was suspended for two days by the principal for slapping a female student. On April 30, 1993, petitioner was notified that Anthony's suspension was extended to five days and that a hearing was scheduled to determine if Anthony would be further disciplined pursuant to Education Law '3214(3)(c). The hearing was held on May 5, 1993 before a hearing officer appointed by the superintendent. After receiving testimony from both sides, the hearing officer determined that Anthony had slapped the female student as alleged. The hearing officer then reviewed Anthony's anecdotal record and recommended suspension for the remainder of the school year. The superintendent adopted the hearing officer's findings and recommendations and suspended Anthony through the end of the school year. Petitioner appealed the superintendent's decision to respondent. On May 18, 1993, respondent reviewed the record and affirmed the superintendent's decision. This appeal ensued.

As a preliminary matter, petitioner offers new allegations and exhibits in her reply and memorandum of law. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3). It is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been contained in the petition (Appeal of Konkoski, 33 Ed Dept Rep 303; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, 30 id. 119). Nor may such items be set forth for the first time in a memorandum of law (Appeal of Executone Northeast, Inc., 29 Ed Dept Rep 18). Accordingly, I have not considered the new allegations and exhibits included in petitioner's reply or memorandum of law.

As to the merits, petitioner raises a number of issues involving the conduct of an earlier disciplinary hearing. The results of that hearing were negated by a subsequent order of the Chautauqua County Family Court. Therefore, the issues raised by petitioner in connection with the prior hearing are moot. As has repeatedly been held, the Commissioner of Education will not render a decision on a controversy which subsequent events have laid to rest (Appeal of MacNeill, 33 Ed Dept Rep 380; Appeal of Impellizzeri, 32 id. 26; Appeal of DiMilia, 30 id. 391).

Regarding the hearing held on May 5, 1993, petitioner contends that the evidence presented does not support a finding that Anthony slapped a female student. Petitioner further alleges that respondent's actions in this matter are somehow in retaliation for the Family Court's negation of the results of a prior disciplinary hearing. Petitioner also claims that the penalty imposed was excessive.

In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Gloria C., 32 Ed Dept Rep 664; Appeal of Negrin, 29 id. 484). There is nothing in the record before me to support petitioner's claims, other than bare assertions. In view of respondent's denial of these allegations, petitioner has failed to meet her burden of proof. Moreover, in light of Anthony's extensive anecdotal record, a suspension of approximately six weeks is not excessive. Accordingly, I will not disturb respondent's findings on guilt or penalty.

The record indicates that while Anthony was suspended, respondent provided him with alternative instruction. Petitioner maintains that such alternative instruction was inadequate and constituted little more than delivery and retrieval of homework assignments. However, the record shows that respondent provided Anthony with a one-on-one tutor who was scheduled to spend two hours per school day with Anthony. In addition, the tutor routinely consulted with Anthony's classroom teachers regarding his progress. Unfortunately, the record also reveals that Anthony was often uncooperative and at times absented himself from scheduled instruction. When Anthony did not cooperate, the tutor arranged to make up missed instruction. Accordingly, I cannot conclude that respondent has acted improperly in providing alternative instruction for Anthony.

I have reviewed petitioner's remaining contentions and find them without merit.