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Decision No. 15,378

Appeal of J.B., on behalf of her son T.B., from action of the Board of Education of the Oakfield-Alabama Central School District regarding student discipline.

Decision No. 15,378

(March 21, 2006)

Harris Beach PLLC, attorneys for respondent, David W. Oakes, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Oakfield-Alabama Central School District ("respondent") affirming the in-school suspension of her son, T.B. The appeal must be dismissed.

On May 24, 2005, an incident occurred on a school bus wherein students allegedly teased a special education student. T.B., a fourth grade student, was reported to have been one of the children who participated in the teasing. Respondent's elementary school principal investigated the report on May 25, 2005. After speaking with T.B., the principal decided to impose a one-day in-school suspension. The principal spoke with petitioner on May 25 and informed her of her decision.

The principal also met in person with petitioner on May 26, 2005 and spoke with her by phone again on May 27, 2005. Based on her conversation with petitioner on May 26, the principal designated Michael Goodrich, a district teacher and interim principal, to conduct an additional investigation of the incident. After completing his investigation, Mr. Goodrich concluded that T.B. had been involved in the teasing incident. Based on this investigation, the principal determined that T.B. should serve a one-day in-school suspension on June 1, 2005, which T.B. served.

At petitioner's request, the principal and Mr. Goodrich met with her on June 1, 2005 to further discuss the incident. On June 21, 2005, petitioner met with respondent's superintendent, who told petitioner that he believed the principal's actions had been appropriate. He also advised petitioner that she could appear at the next school board meeting on July 26, 2005 to address the board in executive session. Petitioner appeared at the board meeting on July 26, but upon learning respondent's attorney would be present during the executive session, declined to participate. By letter dated August 1, 2005, respondent upheld the one-day in-school suspension of T.B. This appeal ensued.

Petitioner claims that her son was not one of the children teasing the special needs student. She contends that her son was sitting next to the student and defended the student against the other children. She maintains that her son did not confess to the principal; rather, the principal assumed he was involved and called him into her office only to confront and punish him. She also alleges that the investigation by Mr. Goodrich was not thorough or proper, and that her son's due process rights were violated when she was not allowed to question complaining witnesses. Petitioner also claims that she did not speak at the board meeting because she had no lawyer and did not expect respondent's attorney to be present. She asks that the one-day in-school suspension be expunged from her son's record.

Respondent claims that petitioner's son confessed to the teasing when questioned by the principal. It also alleges that in response to petitioner's concerns, the principal asked Mr. Goodrich to further investigate the matter, which confirmed the principal's initial finding. Respondent further contends that the one-day in-school suspension was reasonable and that an in-school suspension does not trigger the due process protections of Education Law �3214. Respondent also maintains that it was not improper for its attorney to be present at the board's executive session. Finally, respondent objects to petitioner's reply because it raises new matters not raised in respondent's answer.

Initially, I must address petitioner's reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in an 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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In-school suspensions are not governed by the provisions of 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 M.C., 43 Ed Dept Rep 276, Decision No. 14,993; Appeal of N.C., 42 id. 119, Decision No. 14,794; Appeal of Denis, 40 id. 306, Decision No. 14,487).

The principal met with petitioner on one occasion and spoke with her on the telephone about the incident on two occasions, prior to imposing the in-school suspension. Additionally, after meeting with petitioner on May 26, 2005, the principal designated Mr. Goodrich to conduct an investigation into the incident. The two students he interviewed supported the claim that T.B. was involved in the teasing incident. Accordingly, on the record before me, I conclude that petitioner and her son were afforded adequate due process. It further appears that the penalty imposed, a one-day in-school suspension, was not unreasonable.

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