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Decision No. 15,006

Appeal of A.L.P., on behalf of his daughter L.P., from action of the Board of Education of the City School District of the City of Buffalo regarding student discipline.


Decision No. 15,006

(December 23, 2003)



City of Buffalo Dept. of Law, Michael B. Risman, Esq., Corporation Counsel, attorney for respondent, J. Richard Benitez, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the decisions of the Board of Education of the City School District of the City of Buffalo ("respondent") to suspend his daughter, L.P.  The appeal must be dismissed.

On October 25, 2002, petitioner"s daughter was suspended from school after an altercation with another student.  Petitioner appeared at the school that same day and requested a hearing before the suspension was imposed.  According to petitioner, he was denied the opportunity to speak to the school principal, advised that a hearing would be scheduled and directed to keep his daughter at home until the hearing was conducted.

Petitioner commenced an action in New York State Supreme Court, Erie County ("Supreme Court"), challenging the suspension procedures used by respondent"s administrators.  In the meantime, a superintendent"s hearing scheduled for November 1, 2002 was postponed, at petitioner"s request, until November 14, 2002. 

By decision dated November 14, 2002, Supreme Court dismissed petitioner"s action.  Petitioner filed a motion to reargue that decision, which was denied on January 15, 2003.  It appears petitioner also appealed the decision, but voluntarily discontinued the appeal by notice dated March 14, 2003. 

The disciplinary hearing was conducted on November 14, 2002 and the hearing officer recommended L.P"s immediate return to school.  By letter dated December 18, 2002, respondent"s superintendent formally adopted the hearing officer"s recommendation. 

On December 4, 2002, L.P. was removed from class for the remainder of that day and given detention for being insubordinate and argumentative.  On December 12, 2002 she was removed from classes for "student safety." A parent conference to discuss this discipline was held on December 16, 2002.  By letter dated December 18, 2002, petitioner was notified that a parent conference was scheduled for December 20, 2002, because L.P. did not complete a plan she was required to carry out for being "out-of-position," an offense that is not defined or explained in the record.  She was removed from classes again on January 2, 2003 for "failure to complete plan for out of position."  The notice also referred to attendance and academic problems.  L.P. was withdrawn from respondent"s schools on or about January 2, 2003.

Petitioner contends that respondent"s administrators violated Education Law "3214 by failing to provide a conference prior to L.P."s suspensions and by refusing to permit petitioner to question the complaining witness regarding the December 4, 2002 suspension.  Petitioner also asserts that suspension is not a penalty authorized by the Education Law for failure to complete a plan required as a result of "out-of-position" slips.   Petitioner requests that L.P."s records be expunged of all references to these disciplinary actions.

Respondent contends that the petition is defective because it lacks an affidavit of verification.  Respondent further contends that petitioner improperly served the petition on the district and failed to supply an affidavit of service.   Respondent also asserts that the appeal should be dismissed as moot because L.P. is no longer a student in its district and maintains that the appeal is untimely.  Respondent further argues that, because petitioner elected to bring a court proceeding on the same issues raised in this appeal, he is estopped from raising them here.  Respondent also asserts that a conference with petitioner was held each time L.P. was disciplined.  Finally, respondent states that the complaining witness for the December 4, 2002 discipline refused to appear at the parent conference because she was afraid of petitioner.

  Section 275.5 of the Commissioner"s regulations requires that all pleadings in an appeal before the Commissioner be verified.  Section 275.6 requires that the verification be made by affidavit in a specific form.  The petition does not contain a separate affidavit of verification in the required form.  Petitioner argues that paragraph 3 of the petition, which states "(T)hat I am thoroughly familiar with that (sic) facts and circumstances of this matter from the papers filed and the proceedings had heretofore, and I believe the facts of the petition set out below to be true," coupled with his notarized signature on the petition, substantially complies with the regulation.  In this case, a petitioner who was not represented by counsel attempted to provide a verification and had his petition notarized.  Respondent does not contend that it was prejudiced in any way by the awkwardly written verification.  Therefore, even though the verification was not in the exact form required by the regulations, I decline to dismiss the petition on this ground.

The appeal must be dismissed as it relates to the October 25, 2002 suspension because petitioner elected to bring suit in Supreme Court regarding that suspension.  My review of petitioner"s affidavit filed with Supreme Court reveals that the judicial proceeding relates to the same set of facts, involves the same parties and raises essentially the same issues as petitioner raises in this appeal.  It is contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy (Appeal of Coughlin, 41 Ed Dept Rep 484, Decision No. 14,751; Appeal of Soukey, 38 id. 626, Decision No. 14,106; Appeal of Phillips, 38 id. 165, Decision No. 14,008).

The petition as it relates to the suspensions of December 4 and 12, 2002, must be dismissed as untimely.  An appeal to the Commissioner of Education pursuant to Education Law "310 must be initiated within 30 days of the action or decision complained of unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16).  Petitioner did not commence this appeal until January 15, 2003, more than 30 days after those suspensions.  Petitioner claims that he waited to file the petition until he received the superintendent"s decision. That determination was dated December 18, 2002.  The timing of that decision is not good cause for the delay in appealing the other separate suspensions.  Therefore, petitioner has not adequately explained why he belatedly challenged the remaining two suspensions, and his claims regarding them are dismissed as untimely.

Petitioner"s claims that improper procedures were used in L.P."s December 18, 2002 and January 2, 2003 "suspensions" must also be dismissed because petitioner has failed to establish that L.P. was, in fact, suspended on those dates. In an appeal to the Commissioner, the petitioner bears the burden of establishing the facts upon which he or she seeks relief and demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of L.M., 43 Ed Dept Rep __, Decision No. 14,994).  Respondent contends that L.P. was not suspended on December 18, 2002, merely "written up."  The notice of that discipline, submitted by petitioner, states only that a parent conference is required and that the student may remain in class until the conference is held.  In contrast, the other disciplinary notices submitted by petitioner clearly state that the student is being removed from classes. 

As for the January 2, 2003 "suspension," petitioner has failed to establish that L.P. was, in fact, suspended on that occasion also, since petitioner withdrew her from respondent"s schools on that date.  Therefore it is unclear if any suspension occurred or if there is any record of this "suspension" to be expunged. 

Although I am dismissing this appeal, I note that the Education Law and governing regulations require that a parent receive written notice and an opportunity for an informal conference before a student is suspended for up to five days unless the student poses a continuing danger or threat (Education Law "3214[3][6][1]; 8 NYCRR "100.2[e][4]; Appeal of S.C., 43 Ed Dept Rep ___, Decision No. 14,978).  Respondent is reminded of its legal obligation to fully comply with all laws and regulations governing the discipline of students.