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Decision No. 16,337

Appeal of P.M., on behalf of her granddaughter A.M., from action of the Board of Education of the Granville Central School District regarding student discipline.

Decision No. 16,337

(March 29, 2012)

Timothy M. Bulger, Esq., attorney for petitioner

Judge & Duffy, attorneys for respondent, Monica A. Duffy, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Granville Central School District (“respondent”) to suspend her granddaughter.  The appeal must be dismissed.

Petitioner’s granddaughter, A.M., attended respondent’s junior/senior high school during the 2010-2011 school year.  In January 2011, the principal received information that A.M. had written a list of students’ names, entitled “Kill List,” in her daily planner.  A.M. was directed to give the daily planner to her English teacher and did so.  On or about January 21, 2011, A.M. met with the principal and admitted to creating and writing the list of names.  A.M. was suspended for five days, commencing on January 21, 2011.  The principal also notified the police and the parents of each of the students on the list.   

A superintendent’s hearing was held on January 27, 2011.  At the hearing, A.M. again admitted to creating the list.  The superintendent found A.M. guilty of conduct substantially disruptive of the educational process.  The superintendent imposed a penalty of suspension for one calendar year until January 2012.  The superintendent indicated that A.M. might be permitted to return to school in September 2011 if she participated in counseling and school personnel determined that she could return to school safely.  

Petitioner appealed the superintendent’s decision to respondent.  By letter dated April 27, 2011, respondent upheld the suspension.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 7, 2011.

Petitioner asserts there is no basis in the record for respondent’s determination that A.M. is guilty of the conduct charged, claiming that, although A.M. created the list of names, she erased the words “Kill List” from the page.  In the alternative, petitioner contends that the penalty imposed was excessive. 

Respondent maintains that A.M. admitted to creating and writing the “Kill List,” thus supporting its findings of guilt.  Respondent asserts that petitioner’s appeal to the board did not challenge A.M.’s guilt, but was limited to the length of suspension imposed.  Respondent contends that the penalty was proportionate to the severity of the offense and that its determination to suspend A.M. for one year was not excessive, arbitrary or capricious. 

I must first address procedural matters.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

Petitioner also submits an “attorney’s response to respondent’s memorandum of law,” which is in the form of an attorney’s affirmation and replies to statements in respondent’s memorandum of law.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5), and prior approval of the Commissioner is required for submission of a reply memorandum (8 NYCRR §276.4).  Petitioner did not seek or receive such permission prior to submission of the attorney’s response, nor does the submission include any application for acceptance.  Consequently, I have not considered the document. 

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

Petitioner seeks only that the suspension be lifted and A.M. returned to school; she does not request expungement of her granddaughter’s records.  In response to a request by my Office of Counsel, respondent submitted an affidavit on September 9, 2011, indicating that A.M. was permitted to return to school on September 7, 2011 and her suspension was terminated.  Consequently, no further relief can be granted and the matter is academic.

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