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Decision No. 14,993

Appeal of M.C., on behalf of his son J.C., from action of the Board of Education of the Altmar-Parish-Williamstown Central School District regarding student discipline.


Decision No. 14,993

(December 8, 2003)


Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Donald E. Budmen, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Altmar-Parish-Williamstown Central School District ("respondent") affirming his son"s in-school suspension.  The appeal must be dismissed.

On March 15, 2002, a teacher"s aide monitoring the school lunchroom asked J.C. to wear his identification tag, as required.  She reported that each time he was asked to wear his identification tag, he would put it on, but remove it again after she walked away.  J.C. also continued to talk during the silent reading period even though the teacher"s aide directed him to stop.  The teacher"s aide wrote a referral to the principal stating that J.C. was insubordinate.

On March 18, 2002, the assistant principal met with J.C. about the incident.  Although J.C. did not deny that he was asked to wear his identification tag several times, he stated that the requests were not made on the same day.  He admitted that he was talking during the silent reading period, mostly about a stolen book.  The assistant principal told J.C. that the disruption and insubordination was a Level II offense and by letter dated March 18, 2002, imposed a three-day in-school suspension from March 19-21, 2002.

On March 19, 2002, the assistant principal spoke with petitioner"s wife, who stated she disagreed with the suspension and asked the assistant principal to contact petitioner.  Thereafter, the assistant principal spoke to petitioner on two separate occasions.

On the evening of March 19, 2002, the principal contacted petitioner to discuss the suspension.  Petitioner maintained that J.C. had been denied due process and that his conduct did not rise to the level of "overt insubordination," required for a Level II offense.  The principal declined to release J.C. from in-school suspension.

On March 20, 2002, in the absence of respondent"s superintendent, petitioner and his wife met with respondent"s high school principal.  The middle school principal and the teacher"s aide also attended this meeting.  Pending the outcome of the meeting, J.C. was released from in-school suspension.

Later that same day, petitioner, his wife and J.C. met with the middle school principal and the teacher"s aide.  At this meeting, petitioner reiterated that J.C. had not been overtly insubordinate.  The middle school principal agreed to defer J.C."s suspension until the superintendent could hear petitioner"s appeal.  At this point, J.C. had served one and one-quarter days of his three-day in-school suspension.

On March 27, 2002, petitioner and his wife met with the superintendent.  In addition, on March 28, 2002, he presented his concerns to respondent.  By letter dated April 22, 2002, the superintendent upheld the in-school suspension.

On May 9, 2002, petitioner appealed the superintendent"s decision to respondent.  By letter dated August 22, 2002, respondent notified petitioner that it upheld the determination and concluded that J.C."s penalty would be the one and one-quarter days of in-school suspension already served.  This appeal ensued.

Petitioner contends that J.C. was denied due process and that J.C."s acts were not insubordinate.  Petitioner also alleges that respondent did not comply with its code of conduct and that the assistant principal did not have authority to suspend J.C.  Petitioner requests that the in-school suspension be expunged from J.C."s record.  Petitioner also seeks numerous other remedies, including removal or admonishment of respondent"s board members and the superintendent.

Respondent claims that J.C. was, in fact, insubordinate and that adequate due process was provided. Respondent asserts that petitioner failed to state a claim and failed to join the individual board members and middle school principal as parties.  Among other things, respondent also contends that petitioner seeks relief beyond the scope of the Commissioner"s authority.

Initially, I must address petitioner"s reply.  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 Liberatore, 42 Ed Dept Rep ___, Decision No. 14,869; Application of McDougall and Dacey, 42 id. ___, Decision No. 14,819).  Therefore, while I have reviewed petitioner"s reply, I have not considered those portions containing new allegations or exhibits which are not responsive to new material or affirmative defenses set forth in the answer.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of M.M., 42 Ed Dept Rep ___, Decision No. 14,870; Appeal of Loveland and Hazelton, 42 id. ___, Decision No. 14,858).  Here, petitioner seeks sanctions against the middle school principal, individual board members and the superintendent.  Therefore, they should have been joined as parties and petitioner"s failure to do so requires dismissal of the appeal as it relates to them.

The appeal must also be dismissed on the merits.  Petitioner contends that the assistant principal lacked the authority to impose an in-school suspension.  This assertion is incorrect.  While Education Law "3214 prohibits an assistant principal from imposing an out-of-school suspension, it does not prohibit an assistant principal from imposing an in-school suspension.  Moreover, the procedure employed appears to be consistent with respondent"s code of conduct.

Petitioner also asserts that he and J.C. were not accorded due process.  In-school suspensions are not governed by Education Law "3214.  Procedures governing in-school suspensions need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794; Appeal of Denis, 40 id. 306, Decision No. 14,487).  Here, respondent"s code of conduct provides for "a reasonable opportunity for an informal conference with the district official imposing the in-school suspension to discuss the conduct and the penalty imposed."

The assistant principal met with J.C. before the suspension was imposed and spoke with petitioner and his wife on the first day of the suspension.  In addition, petitioner, his wife and J.C. met with respondent"s middle school principal.  The initial three-day suspension was deferred after J.C. served one and one-quarter days while review continued.  Petitioner was also afforded the opportunity to appear before respondent.Accordingly, on the record before me, I conclude that petitioner and J.C. were afforded adequate due process.

It further appears that the penalty imposed is consistent with respondent"s code of conduct.  The code defines insubordination to include "failing to comply with the reasonable directions of teachers, school administrators or other school employees."  Insubordination is classified as a Level II offense, unacceptable conduct, which is punishable by, among other things, in-school suspension.

I have reviewed petitioner"s remaining contentions and find them either beyond the jurisdiction of a "310 appeal or without merit.