Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Sewanhaka Central High School District regarding student discipline.

Decision No. 16,554

(September 26, 2013)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) to suspend her son from school for four days. The appeal must be dismissed.

On June 8 and 9, 2010, petitioner’s son was involved in a lunchtime incident in which he participated in what he characterized as the “knife game,” during which he inflicted multiple cuts on the arms of two students with aplastic knife. The assistant principal investigated the incident. That same day, the assistant principal notified petitioner by telephone of the incident and informed her that the principal imposed an immediate two-day suspension on June 10 and June 11, 2010, the last two days of classes for the 2009-2010 school year. Later that afternoon, petitioner met with the assistant principal to discuss the matter. The parties dispute whether the principal was present. Respondent states that, by letter dated June 10,2010, the principal confirmed the suspension, informed petitioner that a superintendent’s hearing would be held and formally notified her that she had the right to meet with him and the assistant principal. Respondent submits a copy of the letter, but petitioner denies having received it.

By letter dated June 11, 2010, the superintendent charged petitioner’s son with engaging in violent, disorderly and disruptive conduct and continued the suspension and stated that a suspension hearing would be held on June 16, 2010. According to the record, petitioner’s son was permitted to take exams on June 14 and June 15. The record also indicates that a manifestation determination was made on June 14, 2010, which concluded

that the student’s behavior was not a manifestation of his disability.

Following the suspension hearing, the hearing officer determined that, although the student’s actions were not “violent,” inasmuch as he determined that the boys involved were playing a game, the student had engaged in disorderly and disruptive conduct which endangered the safety, health and welfare of others. The hearing officer recommended continuing the suspension until June 24, 2010, the last day of the 2009-2010 academic year. By letter dated July 6, 2010, the superintendent issued a preliminary decision accepting the findings and recommendations of the hearing officer and notified petitioner that the preliminary decision could be appealed to respondent.

Petitioner thereafter appealed the superintendent’s decision to respondent, requesting that the suspension be vacated and the matter be expunged from her son’s records. By letter dated August 26, 2010, respondent partially granted petitioner’s appeal by reducing the suspension to four days, but upholding the superintendent’s decision in all other respects. This appeal ensued.

Petitioner alleges that there were numerous procedural violations in connection with the disciplinary proceedings and, therefore, the suspension was improper. As relief, petitioner requests an order annulling the suspension and expunging it from her son’s records. Petitioner also contends that district staff disclosed confidential information from her son’s records in violation of the federal Family Educational Rights and Privacy Act (“FERPA”).

Respondent contends that it complied with all procedural requirements, and that the suspension imposed was in all respects proper. Respondent also denies that any FERPA violation occurred.

I must 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). 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.

With respect to petitioner’s FERPA claims, the Commissioner lacks jurisdiction to consider FERPA claims. The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal ofG.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal ofR.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M.,46 id. 262, Decision No. 15,502).

Turning to the merits, 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). By letter dated May 22, 2012,counsel for respondent notified petitioner and my Office of Counsel that respondent agreed to grant petitioner’s request and expunge the incident from the student’s records, effective July 1, 2012. Accordingly, because petitioner has received the relief requested herein, the matter is academic and the appeal is moot.

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

As a final matter, although the appeal is dismissed as moot, I note that it is unclear from the record whether respondent fully complied with all procedural requirements of Education Law §3214 and §100.2(l) of the Commissioner’s regulations. Respondent is reminded to ensure such compliance prior to imposing student disciplinary action.

THE APPEAL IS DISMISSED. END OF FILE