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Decision No. 16,370

Appeal of R.F., on behalf of his son R.F., from action of the Board of Education of the East Meadow Union Free School District regarding student discipline.

Decision No. 16,370

(July 18, 2012)

Jaspan Schlesinger LLP, attorneys for respondents, Carol A. Melnick, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education (“respondent”) of the East Meadow Union Free School District (“district”) upholding the suspension of his son, R.F.  The appeal must be dismissed.

During the 2010-2011 school year, R.F. was a ninth- grade student at the district’s high school.  On May 16, 2011, R.F. was suspended for five days for bringing a weapon, specifically, a folding knife, to school and passing it to another student.  By letter dated the same day, the superintendent notified petitioner of a hearing scheduled for May 19, 2011.  Prior to the commencement of the hearing, counsel for the district and R.F.’s mother reached a settlement agreement whereby R.F. would be suspended from school, with home instruction, for one year and be eligible to return to school on May 19, 2012.  Upon R.F.’s mother’s request, the district agreed to permit R.F. to remain on home instruction through the end of the 2011-2012 school year on June 30, 2012.

On January 24, 2012, petitioner met with the high school principal to request that he consider recommending to the superintendent that R.F.’s suspension be reduced because R.F. had successfully engaged in counseling.  Several days later, the principal requested that petitioner submit his request in writing.  Thereafter, the principal requested that R.F. meet with the district’s school psychologist.  Petitioner asserts that he asked for this request in writing but no written request was provided.  Nonetheless, R.F. met with the psychologist on February 8, 2012.  By telephone call the next day, the principal informed petitioner that, after conferring with the psychologist, he would not recommend a reduction in R.F.’s suspension to the superintendent.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 22, 2012.

Petitioner seeks relief from the district’s actions from January 24 through February 9, 2012.  He also appeals the duration of the suspension agreed to on May 19, 2011.  Petitioner asserts that when the suspension was imposed, the principal stated that he might re-evaluate the duration of the suspension if R.F. sought counseling.  While petitioner acknowledges that no promises or assurances were made as to whether obtaining counseling might reduce the suspension, he contends that the penalty is excessive and requests that R.F. be permitted to return to school before the expiration of the suspension period.

Respondent contends that the appeal must be dismissed for failure to state a claim upon which relief may be granted.  Respondent asserts that R.F. was suspended pursuant to a valid settlement agreement signed by him and his mother wherein they waived the right to appeal.  Respondent asserts further that counseling was never mandated, that petitioner raised the issue of counseling as a possibility for R.F. to re-enter school before the expiration of the suspension period and that no promises or assurances were made to reduce the suspension.  Respondent states that although the principal was under no obligation to do so, he nonetheless considered petitioner’s request to reduce R.F.’s suspension and determined not to recommend a reduction to the superintendent.

I must first address several procedural issues.  On February 21, 2012, petitioner served a response to respondent’s affidavits in opposition to his stay request.  There is no authority for such a response under the Commissioner’s regulations (see 8 NYCRR §275.3; Appeal of DeLouise, 49 Ed Dept Rep 384, Decision No. 16,058; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  In addition, respondent objects to the response because, at the time it was served, respondent had not yet served its answer, which was not required to be served until March 1, 2012, 20 days after service of petition, and petitioner served a timely reply on March 12, 2012 (see 8 NYCRR §§275.13[a] and 275.14[a]).  Accordingly, I will not consider the February 21, 2012 response but will consider only petitioner’s reply.

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; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  To the extent petitioner appeals R.F.’s suspension on May 16, 2011, the appeal is clearly untimely since it was not commenced until February 10, 2012.  In addition, to the extent petitioner challenges the validity of the settlement agreement executed on May 19, 2011, it is also untimely.

The appeal must also 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).  Pursuant to the settlement agreement, R.F.’s suspension ended on June 30, 2012 and petitioner does not seek expungement of R.F.’s record.  Accordingly, the appeal must be dismissed as moot.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits.  Under certain conditions, parents may waive a student’s due process rights under Education Law §3214 (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818; Appeal of a Student Suspected of Having a Disability, 41 id. 390, Decision No. 14,722).  For such a waiver to be valid, however, it must be "voluntary, knowing and intelligent" (Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976).  The district must provide the student and parents with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818).

Here, the written settlement agreement specifically provides that R.F. and his parent had the opportunity to discuss and consider the agreement and read the district’s code of conduct and the superintendent’s May 16, 2011 letter, which detailed their rights under Education Law §3214.  It also provides that R.F. and his parent “agree that they knowingly and voluntarily waive those rights and any appeal or challenges to the procedures used in connection with this Agreement, the manifestation hearing, Superintendent’s hearing or penalty imposed in any way and in any forum whatsoever.  Similarly, the District considers this matter closed.”

I find that the waiver of due process was knowing and voluntary in this case.  Moreover, the agreement contains no language regarding the possibility for a reduced suspension.  Yet, the principal agreed to consider petitioner’s request for a reduced sentence by reviewing R.F.’s counselor’s letter and by having R.F. meet with the school psychologist.  The fact that petitioner disagrees with the principal’s ultimate determination not to recommend to the superintendent that the penalty be reduced does not create a cause of action upon which relief may be granted.  Moreover, petitioner does not question the validity or terms of the agreement and I note that in an affidavit, the superintendent avers that, pursuant to district’s records, petitioner’s wife “has and had authority to make education-related decisions for” R.F.  Accordingly, the appeal must be dismissed.

In light of this disposition, I need not consider petitioner’s remaining contentions.