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Decision No. 16,371

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Red Creek Central School District and David G. Sholes, Superintendent, regarding student discipline.

Decision No. 16,371

(July 18, 2012)

O’Hara, O’Connell & Ciotoli, attorneys for petitioner, Timothy A. Collins, Esq., of counsel

Matthew R. Fletcher, Esq., attorney for respondents

KING, JR., Commissioner.--Petitioner appeals the determination by the Board of Education of the Red Creek Central School District (“respondent”) upholding the suspension of his son.  The appeal must be dismissed.

During the 2009-2010 school year, petitioner’s son (“student”) attended 10th grade at respondent’s high school.  The student had a full-time individual aide.  On November 20, 2009, an incident occurred wherein the student would not refrain from inappropriately touching himself in the classroom.  Although his aide told him to stop the behavior, the student continued to touch himself while jerking his head and body toward his aide.

The student was suspended for five days.  By letter dated November 25, 2009, petitioner was notified that a superintendent’s hearing would be held on December 1, 2009.  The student was charged with violating the school’s code of conduct by engaging in obscene behavior and failing to meet student responsibilities by failing to conduct himself with respect towards self, fellow students, teachers and others and failing to demonstrate appropriate conduct and a positive attitude in school activities.  At the superintendent’s hearing, the hearing officer determined that the student was guilty of all charges and the manifestation team determined that the student’s conduct was not a manifestation of his disability.  The hearing officer recommended a penalty of suspension for the remainder of the school year.

By letter dated December 3, 2009, the superintendent notified petitioner of his determination accepting the hearing officer’s findings and recommendation and suspending the student.  In the letter, the superintendent also offered the student half-day “continued educational services” at BOCES and half-day services at “ARC Key Industries.”  The parents refused this offer and appealed the suspension to respondent.  By letter dated February 26, 2010, respondent denied the appeal and upheld the student’s suspension.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 9, 2010.

Petitioner argues that the penalty of suspension for the remainder of the 2009-2010 school year was excessive and not proportionate to the offense.  Petitioner also argues that incidents in the student’s anecdotal record that had not been subjected to a manifestation determination were improperly considered.  Petitioner seeks a determination that the suspension was excessive.

Respondent maintains that its discipline determination is in all respects proper and that the student’s anecdotal record was properly considered.  Respondent also asserts that petitioner lacks standing, fails to state a claim and that the appeal is moot.  Respondent also challenges the scope of petitioner’s reply and portions of his memorandum of law and asserts that they should not be considered because they impermissibly contain belated new assertions.

I will first address several 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).  Additionally, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed the reply and memorandum of law, 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.

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).  The 2009-2010 school year ended prior to completion of the record in this appeal.  The record indicates that the student completed the suspension and was entitled to return to school.  Petitioner does not seek expungement of the student’s records in his petition.  Therefore, petitioner’s claims regarding the student’s suspension are moot.

Although the appeal is dismissed on procedural grounds, I note that petitioner raises several complaints regarding the manner in which the manifestation hearing was conducted and the determination that the conduct at issue was not a manifestation of the student’s disability.  The proper avenue of redress for such claims would have been to request an impartial hearing pursuant to Education Law §4404(1) and §§200.5(i) and (j), and 201.11(a)(3) of the Commissioner’s regulations (Appeal of a Student with a Disability, 46 Ed Dept Rep 385, Decision No. 15,540).  If a party disagrees with the decision of an impartial hearing officer, they may appeal that decision to the State Review Officer pursuant to Education Law §4404(2).

I must also comment on the superintendent’s actions regarding the student’s placement.  Subsequent to a disciplinary incident in November 2008, the superintendent indicated that he was “open to looking at an out-of-district placement option” for the student.  In his December 3, 2009 letter, he offered the student a half-day BOCES and half-day ARC program.  The disciplinary process is not the proper means for implementing a change in placement for a student with a disability.  Any such change must occur by recommendation of a district’s committee on special education (CSE).  I urge the parties to utilize the CSE to ensure that the student is properly placed in the least restrictive educational setting that is appropriate for him.

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