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Decision No. 16,161

Appeal of P.P., on behalf of her son M.P., from action of the Board of Education of the Lake George Central School District regarding student discipline.

Decision No. 16,161

(October 8, 2010)

Tabner, Ryan and Keniry, LLP, attorneys for respondent, Tracy L. Bullett, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lake George Central School District (“respondent”) to uphold the suspension of her son, M.P. (“M.”).  The appeal must be dismissed.

On Friday, September 18, 2009, M., then a seventh grade student at Lake George Junior/Senior High School (“school”), attended a dance in the school gym and was involved in an incident with another student (“A.M.”).  On a discipline referral form, a staff member described the incident:  “[M.] was involved in a ‘scrap’ at the dance.  A female student injured her finger while trying to restrain [M.] who was trying to attack the other student.  [M.] was saying ‘I’m going to f------ kill him” while she tried to hold him back.”  The administrative report section of the form states:  “When [M.] was told to leave the dance and his mother was called he became extremely volatile.  He slammed through a door and directed a large number of profanities at [the principal].”  The form appears to be initialed by the principal under both sections.

On Monday, September 21, 2009, the principal met with petitioner and M. and imposed a one-day in-school suspension.  He also precluded M. from attending dances in October and November.  On September 23, 2009, petitioner wrote to the superintendent requesting answers to several questions regarding M.’s suspension.  Petitioner met with the superintendent, principal and assistant principal on December 21, 2009 with their attorneys present.  At such meeting, the suspension was discussed and petitioner requested, among other things, that M.’s suspension be expunged from his record.  On December 22, the superintendent notified petitioner’s attorney that she was upholding M.’s suspension and denying petitioner’s request for expungement.  She also informed him that any reference to an in-school suspension is part of M.’s discipline file only and not made part of his permanent record.

On December 28, 2009, petitioner again requested that the superintendent expunge the suspension from M.’s record.  She also requested that the principal’s September 21, 2009 letter be removed from M.’s file and A.M. be suspended for five days.  Petitioner appealed to and appeared before respondent.  By letter dated March 26, 2010, the board affirmed the superintendent’s determination not to expunge M.’s one-day suspension.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 6, 2010.

Petitioner states that M. called her crying the night of the dance because A.M. had kicked him in the groin and ran away, but he was being kicked out of the dance.  Petitioner states that she called the police on her way to the dance.  She asserts that she had to telephone the superintendent to discover why M. was suspended because school officials failed to notify her within 24 hours of the suspension as required by Education Law §3214, that she never received a copy of the disciplinary referral, that she did not receive the principal’s letter until September 23, 2009, and that M. did not receive lunch during his suspension.  Petitioner claims that A.M. has a history of harassing her son and that school officials have imposed penalties only on M. but not on A.M., and alleges that A.M. is protected from discipline because his family is politically connected.  Petitioner requests that M.’s suspension be expunged from his record.  She also requests that the assistant principal cease writing what she characterizes as unfair weekly disciplinary referrals for M. which result in his having to serve detention on a weekly basis, and that A.M. be instructed to cease bullying M. and making racist remarks.

Respondent asserts that the petition fails to state a claim upon which relief may be granted and that its decision to uphold the one-day in-school suspension on M. was neither arbitrary, capricious or a violation of law.  It contends that M. was offered lunch and that petitioner was provided with notice and due process, and was permitted to appeal the one-day in-school suspension even though its Code of Conduct does not provide for such appeals.  Respondent asserts that the assistant principal has authority to write disciplinary referrals and there is no evidence that he has done so unfairly.  It also asserts that it has imposed discipline fairly and has not exhibited favoritism.  It contends further that petitioner lacks personal jurisdiction over respondent, and that the petition is barred by the statute of limitations and the doctrine of laches and must be dismissed for failure to join necessary parties.  Finally, respondent seeks attorneys’ fees, costs and disbursements.

I must first address one procedural issue.  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  To the extent that petitioner seeks orders against the assistant principal and A.M., they are necessary parties and should have been joined as such.  Accordingly, petitioner’s claims against the assistant principal and A.M. must be dismissed for failure to join them.

To the extent petitioner seeks expungement of the one-day suspension, the appeal must be dismissed on the merits.  In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  Procedures governing in-school suspensions and suspensions from extracurricular privileges 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 D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).

The record reflects that petitioner met with the principal on September 21, 2009 and he explained the imposition of the suspension for M.’s behavior at the dance.  Petitioner was given the option to take M. home or have him serve the one-day in-school suspension, and she chose to have M. serve the suspension.  Petitioner also met with the superintendent and had an opportunity to express her concern over this suspension before respondent.  I find these actions satisfy respondent’s obligation of procedural fairness and therefore the in-school suspension must be sustained (seeAppeal of Gaslow, 34 Ed Dept Rep 293, Decision No. 13,315).

Respondent’s request for attorneys’ fees, costs or disbursements must also be denied.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

Finally, I note that petitioner has made allegations of bias, racism and bullying against her son that may have contributed to the incident underlying the suspension.  I urge respondent to investigate these allegations and address them as needed to ensure an atmosphere conducive to learning.

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