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Decision No. 14,360

Appeal of D.H., on behalf of K.C., from action of the Board of Education of the New Lebanon Central School District regarding student discipline.

Decision No. 14,360

(May 16, 2000)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the New Lebanon Central School District ("respondent"), upholding the suspension of her daughter, K.C., from the varsity soccer team for the fall 1999 season. Petitioner also appeals certain changes that were made to K.C.'s class schedule in the fall of 1999. The appeal must be dismissed.

On August 12, 1999, the father of a female student ("Student A") told James Bedford, principal of respondent's junior-senior high school, that K.C. and another student ("Student T") had physically assaulted his daughter on August 9, 1999. During the course of Mr. Bedford's investigation of the incident, he interviewed Student A and two other student witnesses to the incident. He also attempted to speak to K.C. to obtain her version of the incident, but petitioner and K.C. declined to speak to him upon advice of their attorney.

On or about August 21, 1999, K.C. began practicing with the varsity soccer team. She signed the Code of Conduct for Interscholastic Athletes ("Code") prescribed by the school district for its student athletes, which she had also signed in August 1998 before the start of the previous soccer season. The Code establishes certain standards of conduct for participation in interscholastic athletics, and provides for suspension or other sanctions for violations of the Code.

On August 30, 1999, after completing his investigation, Mr. Bedford sent a letter to petitioner advising her of his determination that K.C. had violated Sections II-A(1)(d) and II-E(1) of the Code by physically assaulting a fellow student on August 9, 1999. The principal recommended K.C.’s suspension from interscholastic athletics for the duration of the fall season, but recommended the restoration of her eligibility to participate in interscholastic athletics in the winter 1999-2000 season.

Petitioner appealed this decision to the district's Athletic Review Board ("ARB"), which sustained the principal's decision on September 8, 1999. Mr. Bedford informed K.C. of the ARB's determination by letter dated September 10, 1999, and advised her that she could appeal the decision to respondent board pursuant to Section II-L(6) of the Code.

During the investigation of the August 9 incident, the principal and superintendent reviewed the class schedules of all three students involved in the incident, and found that they had various classes and/or lunch periods in common. School records further indicated complaints that Student T had harassed Student A during the previous school year, particularly during the lunch period. Concerned for the health, safety and welfare of all three students, the principal and superintendent resolved to keep them separated to the maximum extent possible during school hours, especially during lunch periods.

To accomplish this goal, school officials made changes to all three students' class schedules for the fall of 1999. K.C. and Student A originally had a lunch period in common. Because the only available alternate lunch period conflicted with a scheduled Business Law course, K.C. was switched into a different course and assigned to the alternate lunch period. The Business Law course was generally filled by senior students, and the administrators reasoned that K.C. would be able to take the course next year as she was only a junior.

On September 13, 1999, petitioner's counsel sent a letter to the superintendent, appealing the ARB's decision to respondent. Petitioner also sent a letter on September 16, 1999 to individual members of respondent board, challenging not only the soccer suspension but also the changes to K.C.'s class and lunch schedule. By decision dated September 27, 1999, respondent upheld K.C.’s suspension from the soccer team for the fall 1999 season, but did not address the changes to K.C.'s schedule. On October 8, 1999, petitioner sent a letter to respondent, questioning why respondent had not addressed the academic scheduling issue in its decision. The superintendent answered by letter dated October 20, 1999, explaining the reasons for the class changes and denying the request to reinstate K.C. into the Business Law class. This appeal ensued. Petitioner's request for preliminary relief was denied on December 7, 1999.

Petitioner contends that the investigation was incomplete and violated K.C.'s due process rights because, upon the advice of counsel, K.C. could not talk to Mr. Bedford and give her side of the incident; that the Code was inapplicable during the summer months, and the off-school activity could not serve to support a school-based suspension; that the schedule changes constituted improper academic punishment; that the penalty was excessive; and that the district does not enforce the Code uniformly or fairly. Petitioner seeks monetary damages, attorneys' fees, reimbursement of fees for a soccer camp K.C. attended during the summer of 1999, a published public apology from district officials, and an order to cease any further discriminatory practices against K.C. or her family.

Respondent denies petitioner's claims, and raises a number of procedural objections. Respondent contends that the petition is untimely, that petitioner failed to name two necessary parties, that the petition served upon them lacked the notices required by ""275.11 and 276.1 of the Commissioner's Regulations, and that the Commissioner lacks jurisdiction to grant the relief requested. I will address these procedural objections first.

I agree that I am without jurisdiction to grant most of the relief sought by petitioner. The Commissioner has no authority to award monetary damages or reimbursements in an appeal brought pursuant to Education Law "310 (Appeal of Dickinson, 39 Ed Dept Rep ___, Decision No. 14,168; Appeal of Calhoun, 38 id. 542, Decision No. 14,089), or to award attorneys' fees (Appeal of Student Suspected of Having a Disability, 39 Ed Dept Rep ___, Decision No. 14,192; Appeal of Silano, 33 id. 20, Decision No. 12,961). Nor is there a legal basis for requesting an order directing school officials to publish an apology to a student (Appeal of Basil, 37 Ed Dept Rep 568, Decision No. 13,929; Appeal of Gary I., 32 id. 191, Decision No. 12,801). Dismissal of the request for written apologies also moots respondent's objection that the principal and superintendent are necessary parties to this appeal, since there is no longer any request for relief directed specifically at them.

The appeal is also untimely insofar as petitioner challenges respondent's September 27, 1999 decision upholding K.C.'s soccer suspension. An appeal to the Commissioner must be brought within 30 days of the making of the decision or act complained of (8 NYCRR "275.16). This appeal in part challenges respondent's September 27, 1999 decision to uphold the soccer suspension. The record does not indicate the date of petitioner's actual receipt of the written decision, but affording the usual five days for mailing, excluding Sundays and holidays (seeAppeal of Medina, 32 Ed Dept Rep 183, Decision No. 12,799), the date of receipt of the decision would be no later than October 2, 1999. The period for initiating an appeal expired 30 days from that date, on November 3, 1999. Petitioner did not commence this appeal until November 17, 1999, and she has presented no excuse or reason for her failure to commence this appeal in a timely manner. The portion of the appeal challenging the soccer suspension must therefore be dismissed as untimely, as well as the request that I order the school to cease discriminating against K.C., because that claim appears to be related to the allegation that the penalty assessed against K.C. was excessive and disproportionate.

The only remaining issue is the challenge to K.C.'s class and lunch transfers, which I find timely because this appeal was commenced within 30 days of the date of the superintendent’s final decision issued on October 20, 1999. In her reply, petitioner withdrew her request to have K.C. transferred back into the Business Law course, which would have had the concomitant effect of reinstating her into the originally assigned lunch period. There are, therefore, no further issues to be addressed in this appeal.