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Decision No. 14,661

Appeal of D.C., on behalf of S.G., from action of the Board of Education of the Carle Place Union Free School District and Michael H. Mostow, Superintendent, regarding student discipline.

Decision No. 14,661

(December 5, 2001)

James P. Demetriou, Esq., attorney for petitioner

Jaspan Schlesinger Hoffman LLP, attorneys for respondents, Carol A. Melnick, Esq., of counsel

Mills, Commissioner.--Petitioner appeals the suspension of her daughter from school by the superintendent of schools of the Carle Place Union Free School District. The appeal must be dismissed.

Petitioner"s daughter, S.G., was an eighth grade student in the district"s middle school at the time of the events leading to this appeal. On April 25, 2001, the middle school principal, Neil Connolly, was apprised that certain words and phrases had been written on the walls of the girls" locker room. Mr. Connolly investigated and found the words "Colleen" and "Die Preps" written on the walls of the locker room. Two students informed Mr. Connolly that they believed S.G. and another student, S.H., were responsible for the locker room graffiti. Accordingly, Mr. Connolly met with S.G. on or about April 27, 2001. At that meeting, S.G. admitted to Mr. Connolly that she was present in the locker room when her friend, S.H., wrote on the walls. Further, the record indicates that S.G. had instructed S.H. to write "Colleen" and had also instructed S.H. to "go ahead" when S.H. indicated that she was going to write "Die Preps."

Immediately following his conversation with S.G., Mr. Connolly contacted petitioner and informed her of S.G."s involvement in the wall-writing incident. Later that afternoon, petitioner and S.G. met with Mr. Connolly in his office to discuss the matter further; at that meeting, S.G. again confessed her role in the incident. Mr. Connolly orally notified petitioner that he was suspending S.G. for five days, from April 30, 2001 through May 4, 2001, and that a superintendent"s hearing would be held regarding the incident.

By notice dated April 27, 2001, Mr. Connolly informed petitioner in writing of his decision to suspend S.G. for five days for her "passive participation in the vandalism of the Middle School girls" locker room" and for "composing the words "Die Preps."" This notice, which was sent via certified mail, return receipt requested, also informed petitioner that the matter was being referred for a superintendent"s hearing. Petitioner alleges that she never received this letter because her work schedule prevented her from retrieving it from the post office.

On or about April 30, 2001, respondent superintendent sent petitioner a letter notifying her that a superintendent"s hearing would be held on May 7, 2001 to consider whether further disciplinary action would be taken against S.G. as a result of her involvement in the wall-writing incident. The letter clearly informed petitioner that she and S.G. had the right to be represented by counsel, to question witnesses and to present witnesses and other evidence at the hearing. Apparently, this letter was erroneously addressed and mailed to S.H."s parents. Petitioner was, however, notified of the letter and its contents and was given a copy by S.H."s father, and both petitioner and S.G. attended the hearing.

By letter dated May 8, 2001, respondent superintendent notified petitioner of his decision finding S.G. guilty of violating the district"s discipline code when she "committed an act of vandalism of district property...." The letter further informed petitioner that S.G. was suspended through May 11, 2001. Finally, the letter advised petitioner that she had the right to appeal respondent superintendent"s decision to the board of education, and that she was requested to notify the board within five days if she intended to appeal. Petitioner never notified the board of her intent to appeal the superintendent"s decision, and there is no evidence that she ever attempted such an appeal to the board. This appeal ensued.

Petitioner asserts that she and S.G. were denied due process because they did not receive the superintendent"s letter informing them of the upcoming superintendent"s hearing and were denied access to counsel during the hearing. Petitioner further asserts that respondent superintendent"s decision "has no rational, reasonable support or explanation in the record, and was wholly without a rational or reasonable basis." Accordingly, petitioner seeks to either have respondent superintendent"s decision revoked in its entirety, or amended or remanded for a new hearing. Petitioner also seeks to have S.G."s record "amended to properly reflect the facts and appropriate punishment." Finally, petitioner seeks an apology from the district.

Respondents assert that petitioner fails to state a claim upon which relief can be granted; that petitioner has failed to exhaust her administrative remedies; that S.G. was never denied due process; and that respondent superintendent"s decision was both rational and reasonable.

Initially, I must address a procedural issue. In both her reply and memorandum of law, petitioner sets forth, for the first time, additional facts, allegations and arguments. The purpose of a reply is to respond to new material or affirmative defenses set forth in the 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 B.W., 40 Ed Dept Rep ___, Decision No. 14,516; Appeal of Boni, 40 id. ___, Decision No. 14,483; Appeal of McCart, et al., 39 id. 534; Decision No. 14,302). Similarly, a memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Muench, 38 Ed Dept Rep 649, Decision No. 14,110; Appeal of McDougall, et al., 37 id. 611, Decision No. 13,941). Therefore, while I have reviewed petitioner's submissions, I have not considered those portions of the reply that contain new allegations that are not responsive to new material or affirmative defenses set forth in the answer, or those portions of the memorandum of law raising new arguments.

Petitioner"s appeal of the superintendent"s decision, both on substantive and procedural grounds, must be dismissed because she has failed to exhaust her administrative remedies. Education Law "3214(3)(c)(1) provides in pertinent part: "An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it." Accordingly, the decision of a superintendent to suspend a student following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (see, Appeal of P. and C.R., 41 Ed Dept Rep ___, Decision No. 14,611; Appeal of Cuardrado, 40 id. ___, Decision No. 14,529; Appeal of Tina S., 40 id. ___, Decision No. 14,482). As previously noted, respondent superintendent"s letter to petitioner dated May 8, 2001 clearly advised that petitioner was entitled to appeal the decision to the board of education. Although the letter requested that petitioner notify the board of her intent to appeal within five days, there is no evidence that her failure to do so would have precluded an appeal. Moreover, there is no evidence that petitioner ever attempted such an appeal to the board.

In light of this disposition, I need not address the parties" remaining contentions.