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Decision No. 16,569

Appeal of O.D. and A.D., on behalf of their son L.D., from action Lynbrook Union Free School regarding student discipline of the District

Decision No. 16,569

(October 15, 2013)

New York Civil Liberties Union, attorneys for petitioners, Jason E. Starr, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, JosephLilly, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the decision of the Board of Education of the Lynbrook Union Free School District (“respondent”) to suspend their son. The appeal must be dismissed.

During the 2012-2013 school year, petitioners’ son ,L.D., attended eighth grade in respondent’s district. According to respondent, on January 3, 2013, the middle school principal and physical education teacher met with


to discuss an ongoing issue in the boys’ locker room in which L.D. had allegedly been engaging in harassing behavior toward another student. As a result, the principal directed L.D. to stay out of the boys’ locker room for one month and not have any interaction with the other student. He was also directed to use either the boys’ bathroom or the bathroom in the physical education teacher’s office to change. Notwithstanding the principal’s directives, on January 9, 2013, at the beginning of his ninth period physical education class,


entered the boys’ locker room. According to respondent, a number of students reported to school personnel that L.D. initiated a verbal altercation in the locker room. Petitioners claim, however, that L.D. entered the locker room “to obtain athletic wear” after waiting until the other student left the locker room, but that the other student re-entered the locker room after L.D. entered and “engaged [L.D.] in a verbal altercation.”

The locker room incident was subsequently reported to the principal, who removed L.D. from his 10th period class to question him. The principal advised L.D. that he would be suspended for two days for insubordination as a result of entering the locker room after he was specifically told not to and for interacting with the other student.

Following this meeting, according to respondent, the principal gave L.D. the option of either returning to his class or going to the guidance office. L.D. instead chose to go to the boys’ bathroom to compose himself since he was “visibly upset.” L.D. then returned to his classroom and encountered the other student, who was exiting the classroom. According to respondent, L.D. intentionally struck the other student with his shoulder, knocking the other student to the ground. L.D. then ran out of the building and off school grounds, despite instructions from his teacher to remain in the classroom.

The principal learned of the second incident as she was on the telephone with L.D.’s mother, petitioner A.D.,to inform her of the two-day suspension. A.D. then informed L.D.’s father, petitioner O.D., who immediately drove home, found L.D., and then took L.D. back to school to meet with the principal. During the meeting, the principal advised that L.D. would be suspended for an additional three days.

By letter dated January 9, 2013, petitioners were advised that their son was suspended for five school days, from January 10, 2013, through and including January 16,2013, both for insubordination and assaulting the student he was directed not to contact. The letter advised petitioners that a referral was being made to the superintendent for a determination as to whether further disciplinary action would be taken, and that the five-day suspension could be appealed to the superintendent.

On January 11, 2013, the interim superintendent served a notice of charges, which detailed 10 disciplinary charges against L.D. and scheduled a superintendent’s hearing for January 16, 2013, with a hearing officer appointed by the interim superintendent. The hearing took place on January22, 2013, following petitioners’ request for an adjournment. Petitioners were represented by counsel at the hearing. After hearing testimony from five witnesses, including L.D., the hearing officer found the student guilty of eight of the 10 charges and recommended a penalty of suspension to continue through February 8, 2013.

By letter dated January 24, 2013, the interim superintendent notified petitioners that she accepted the hearing officer’s findings and recommendation and confirmed that the student would be suspended through February 8,2013. In a separate letter dated January 24, 2013, the interim superintendent responded to petitioners’ appeal of the initial five-day suspension and notified petitioners that the five-day suspension would be expunged from L.D.’s


record. By letter dated March 20, 2013, respondent denied petitioners’ appeal of the long-term suspension. This appeal ensued.

Petitioners argue that the penalty of suspension through February 8, 2013, is “grossly disproportionate to the alleged conduct.” Petitioners seek a reversal of respondent’s determination regarding the long-term suspension and expungement of L.D.’s record. Finally, petitioners request that I excuse their delay in commencing their appeal pursuant to 8 NYCRR §275.16.

Respondent contends that the petition is untimely; that the petition fails to state a claim for which relief can be granted; that the petition fails to establish that the sanction imposed is excessive; that the petition cites improper grounds upon which to base a claim that a suspension is excessive; that the petition improperly attempts to add information not contained in the hearing record; and that petitioners’ memorandum of law should be rejected as it is in the nature of a reply and is not limited to legal arguments.

I must first address the procedural issues. Respondent argues that petitioners’ memorandum of law should be rejected as it is in the nature of a reply and is not limited to legal arguments. 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). Petitioners’ memorandum of law includes new factual assertions and legal arguments that are not part of their verified petition or reply. Therefore, while I have reviewed petitioners’ memorandum of law, I have not considered those portions containing new allegations and claims that are not set forth in the pleadings.

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 EdDept 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). L.D. has already served his suspension and his short-term suspension has been expunged from his record. Thus, except to the extent that petitioners seek expungement of the long-term suspension from L.D.’s record, the appeal must be dismissed as moot.


The appeal must be dismissed as untimely. 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). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).

The record indicates that respondent’s final determination was communicated to petitioners’ attorney by letter dated March 20, 2013. As an affirmative defense in its verified answer, respondent raises untimeliness and claims that petitioners’ attorney received the determination on March 23, 2013. Although petitioners have submitted a reply in which they respond to respondent’s affirmative defense of untimeliness, they did not deny this claim. Petitioners first served their petition upon respondent on June 27, 2013, well more than 30 days later. As an excuse for the delay in commencing the appeal, petitioners’ counsel asserts that, “at no fault of the[p]etitioners,” he failed to properly serve and file the notice of petition and petition, and requests an extension “under principles of fairness.”

I have consistently held that, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Balotti, 53 Ed Dept Rep, Decision No.16,511; Appeal of S.T. and M.T., 52 Ed Dept Rep, Decision No. 16,484; Appeal of Stieffenhofer, 48 Ed Dept Rep 231,Decision No. 15,846; Appeal of a Student with a Disability,48 id. 146, Decision No. 15,821). Other than the excuse proffered by their attorney, petitioners have offered no explanation for their delay, and have therefore failed to establish a sufficient basis to excuse the delay. Indeed, petitioners were represented by counsel both prior to and at the time of respondent’s determination, and they admit that in the March 20, 2013 letter, which also clearly explained the 30-day time period in which to commence their appeal, they were notified that respondent upheld the superintendent’s decision. Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. In their


petition, petitioners do not challenge the findings of guilt against L.D.1 Rather, they argue only that the penalty imposed is “grossly disproportionate to the alleged conduct” and that respondent failed to appropriately consider “the nature of and circumstances leading to the offense, the student’s prior disciplinary record, the effectiveness of other forms of discipline, information from the parents, and other extenuating circumstances....”

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved. The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No.15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882).

In this case, I find no basis upon which to substitute my judgment regarding the penalty imposed. During the hearing, L.D. admitted engaging in certain conduct, including intentionally bumping the other student with his shoulder. The record indicates that, after finding L.D. guilty of eight of the 10 charges, the hearing officer properly considered his anecdotal record – which included approximately 35 prior disciplinary incidents involving conduct ranging from physical altercations with other students to disobeying instructions to insubordination – in recommending that he be suspended through February 8, 2013.On this record, I find that the penalty is not irrational l or unreasonable, given the nature of L.D.’s conduct, and is within respondent’s discretion (see Appeal of M.W. and L.W., 50 Ed Dept Rep, Decision No. 16,238).

In light of this disposition, I need not consider the parties’ remaining contentions. However, while nothing herein should be construed as minimizing the serious safety, social, and emotional issues raised by harassment, bullying and discrimination in public schools, I note that

1 I note that petitioners assert for the first time in their memorandum of law that respondent’s determination was not supported by substantial and/or competent evidence. However, as discussed above, I have not considered those portions of petitioners’ memorandum of law that contain new allegations and claims not raised in the pleadings.


school districts are also responsible for maintaining order and discipline among their students. While petitioners allege in their petition that L.D. was bullied and harassed by the other student, this does not negate L.D.’s responsibility to comply with the instructions and directives of district officials and staff.