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Decision No. 15,153

Appeal of N.L. from action of the Board of Education of the Lynbrook Union Free School District regarding student discipline.

Decision No. 15,153

(December 22, 2004)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jacob Feldman, Esq., of counsel

Petitioner challenges the action of the Board of Education of the Lynbrook Union Free School District ("respondent") regarding student discipline. The appeal must be dismissed.

During the 2003-2004 school year, petitioner�s daughter was enrolled in the tenth grade in respondent�s high school. Although the petition is unclear, it appears that petitioner primarily complains about a two-day suspension imposed on her daughter for a May 26, 2004 altercation with another student. Petitioner claims that her daughter was treated unfairly because the other student only received a one-day suspension and requests that I order respondent to suspend the other student for an additional day. Petitioner also complains, among other things, that in November 2003 and April 2004, school administrators failed to appropriately respond to her daughter�s complaints of harassment by students at school.

Respondent asserts, among other things, that the petition is untimely and fails to establish any basis for relief. Respondent also claims that petitioner failed to join necessary parties.

Preliminarily, I must address a number of procedural matters. Respondent objects to petitioner�s reply and memorandum of law. 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 Goldin, 43 Ed Dept Rep 20, Decision No. 14,904; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Petitioner�s reply, in large measure, improperly reargues points made in the petition, and although I have reviewed it, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

A memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Hager, et al., 43 Ed Dept Rep 363, Decision No. 15,019; Appeal of Hubbard, 39 id. 363, Decision No. 14,259).  Therefore, I have not considered the new assertions regarding respondent�s conduct raised in petitioner�s memorandum.  Petitioner also requests for the first time in her memorandum of law that I expunge her daughter�s record.  Petitioner was required to request such relief in her petition (8 NYCRR �275.10). Accordingly, I will not entertain this request.

On October 20, 2004, my Office of Counsel received a letter with attachments from petitioner raising new issues that were not included in her petition. Additional supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR �276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Gehl, et al., 42 Ed Dept Rep 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086).  I have not accepted these materials because I find that they raise new issues that are not relevant to the claims originally raised in this appeal (see, Appeal of Gehl, et al., supra; Appeal of Johnson, supra).

The appeal must be dismissed as untimely to the extent petitioner challenges the district�s response to her daughter�s complaints of harassment in November 2003 and April 2004. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16). Petitioner commenced her appeal on June 7, 2004, well beyond the 30-day period, and offers no excuse for the delay. Accordingly, these claims must be dismissed as untimely.

The appeal must also be dismissed to the extent that petitioner requests that I order respondent to impose an additional one-day suspension on another student. The rights of this individual would be adversely affected by a determination in petitioner�s favor. Accordingly, he is a necessary party to this appeal and should have been named and served with a copy of the notice and petition ( see, Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059). Inasmuch as petitioner failed to join him as a party, those claims directed against him must be dismissed (Appeal of Andela, 38 Ed Dept Rep 249, Decision No. 14,026; Appeal of Basil, 37 id. 568, Decision No. 13,929). Moreover, although petitioner has standing to challenge the penalty imposed on her daughter, she lacks standing to compel respondent to impose an additional suspension on the student with whom her daughter had the altercation.

The appeal must also be dismissed on the merits. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of Vazquez, 42 id. 245, Decision No. 14,841). The record reflects that petitioner�s daughter had an altercation, threw soda on another student and scratched him in the face after he threw a beverage on her. Respondent explains that both students were given a one-day suspension for inappropriate language and behavior on school grounds and that petitioner�s daughter was given an additional one-day suspension for inappropriate physical contact. Under these circumstances, I do not find the penalty inappropriate and find no basis to interfere with respondent�s determination.

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