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Decision No. 16,578


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

Decision No. 16,578

(December 12, 2013)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Rebecca A. Valk, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Goshen Central School District (“respondent”) upholding the suspension of her daughter (“the student”). The appeal must be sustained in part.

During the 2011-2012 school year, the student attended10th grade in respondent’s high school and received certain accommodations under Section 504 of the Rehabilitation Act,29 U.S.C. §794 (“Section 504”). On April 4, 2012, a school employee informed the assistant principal that he discovered two students in the auditorium engaging in inappropriate sexual behavior. One of the students involved in the incident was the student. According to the assistant principal, upon questioning, the student admitted to engaging in sexual intercourse with another student in the auditorium. She was also cutting class at the time of the incident.

On April 4, 2012, the assistant principal telephoned petitioner and informed her of the incident. The parties dispute whether the assistant principal also informed petitioner that the student would be receiving a two-day suspension or whether she stated that she was recommending a two-day suspension to the principal. The assistant principal informed petitioner during the phone call that she would receive written notice of the proposed suspension within 24 hours. Petitioner then inquired as to the wording of the notice. When the assistant principal reported that the notice would state that the student had been caught having sexual intercourse and cutting class, petitioner objected to this wording. Petitioner was then offered a meeting at the school on April 9, 2012 to discuss her objections. The parties disagree over whether the meeting was delayed until April 9, 2012 because school was closed on April 5 and 6, 2012 or because the assistant

principal was on vacation on those days. The assistant principal contends that during their conversation on April4, 2012, she informed petitioner that the written notice of proposed suspension would be given to her at the April 9,2012 meeting and that petitioner consented to the delay. It is undisputed, however, that petitioner was not informed of her right to question complaining witnesses at that time.

On April 9, 2012, a meeting occurred between the principal, the assistant principal, the student’s parents and her aunt. At that meeting, petitioner was handed written notice, dated April 4, 2012 and signed by the principal, of the district’s “intent” to suspend the student for two days. The letter also stated that the student had been placed on the “no privileges list”1 from April 18 through May 1, 2012. The letter further advised petitioner of her right to request an informal conference and ask questions of complaining witnesses. Although this letter is dated April 4, 2012, it is undisputed that the letter was not given to petitioner until the April 9, 2012meeting.

By letter dated April 9, 2012, the principal informed petitioner and her husband that the student was suspended for two days, April 16 and 17, 2012. By letter dated April10, 2012, petitioner appealed the suspension to the superintendent who upheld the suspension in a letter dated April 13, 2012. Petitioner appealed to the board by letter dated April 10, 2012 and the appeal was denied by the board by decision dated April 18, 2012. This appeal ensued.

Petitioner alleges that the two-day suspension should be expunged from S.B.’s record because of procedural errors made by respondent. Petitioner also asks that the suspension be annulled and, among other things, for a determination that respondent “work to expunge” the student’s police record regarding the incident, that respondent violated the student’s rights under the Family Educational Rights and Privacy Act (“FERPA”), and that respondent discriminated against the student in imposing the suspension.

Respondent denies petitioner’s allegations and argues that there were no procedural violations in the imposition of the penalty because, after she raised objections to the proposed content of the letter during her April 4, 2012telephone call with the assistant principal, petitioner

1 The principal’s April 4, 2012 letter describes that placement on such list results in suspension of various privileges including hall and late passes, access to the handball court, and after school activities.

consented to the delay in the delivery of the written notice more than 24 hours after she was verbally informed of the proposed suspension. Moreover, respondent contends that, even if a procedural violation did occur, such violation did not result in harm. Respondent also alleges that the penalty imposed was appropriate, and that the Commissioner has no jurisdiction over petitioner’s claims regarding the expungement of the student’s police record and alleged FERPA violations. Lastly, respondent alleges that petitioner did not exhaust her administrative remedies with regard to any claims brought under Section 504 and that her claims of discrimination are being addressed by the U.S. Department of Education, Office of Civil Rights.

I will first address the procedural issues. 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 argues in her reply that respondent’s answer was untimely because it was “not received within the20 day time limit.” Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. The date upon which personal service was made upon a respondent shall be excluded in the computation of the 20-day period (8 NYCRR§275.13). When the 20-day period ends on a Saturday, Sunday or public holiday, the answer may be served on the next succeeding business day (8 NYCRR §275.8[b]). Here, the affidavit of service indicates that the petition was served on May 11, 2012. The Commissioner’s regulations provide for service of an answer by either personal service or mail (8 NYCRR §§275.8[b], 275.13[a]). Service by mail is completed by depositing the paper enclosed in a postpaid properly addressed wrapper, in a post office or official depository of the United States Postal Service (8 NYCRR§275.8[b]). In this case, respondent’s affidavit of service indicates that respondent mailed its answer on May31, 2012. The answer was therefore timely served under the Commissioner’s regulations.

To the extent that the student has served the short-term suspension and the period of her placement on the “no privileges list” has ended, 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 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). The student served her suspension, which ended on April 17, 2012, before the appeal was even filed. Likewise, although the petition is not entirely clear, to the extent petitioner claims that the student was kept “out of classes for three periods and not provid[ed]an opportunity to learn during the removal,” such claims are also moot.2 Therefore, the appeal is moot except to the extent petitioner seeks expungement of the student’s records (Appeal of D.O., 53 Ed Dept Rep, Decision No.16,543; Appeal of L.L., 51 id., Decision No. 16,334).

Turning to the merits, in the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct. Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No.15,849; Appeal of a Student with a Disability, 48 id. 154,Decision No. 15,823).

The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

I note that respondent denies this allegation and asserts that the student was cutting class at the time she was discovered in the auditorium and that she was not removed from class within the meaning of the New York State Safe Schools Against Violence Education Act(“SAVE”), as alleged by petitioner. 4 2

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]). Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (see

e.g. Appeal of a Student with a Disability, 47 Ed Dept Rep19, Decision No. 15,608). Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

In this case, respondent admits that written notice was not provided to petitioner until the meeting held on April 9, 2012 and that this was more than 24 hours after the decision to propose suspension, but argues that petitioner waived her right to timely notice. The April 9,2012 letter from the principal confirms that the April 9meeting was in fact the informal conference with the principal afforded petitioner. Consequently, petitioner did not receive written notice describing the incident for which suspension was proposed or her right to question complaining witnesses until the informal conference. Petitioner admits having a brief telephone conversation with the assistant principal on April 4, 2012, but denies that the assistant principal informed her of her due process rights in that conversation and asserts that she and her husband were not made aware of their right to question witnesses during the informal conference.

Even if I were to agree with respondent and find that petitioner verbally waived her right to receive the written notice prior to the informal conference and within the 24hour time frame, the record does not indicate that the waiver of her right to confront complaining witnesses was made knowingly. It appears from the record that the only objection petitioner made was to a statement by the assistant principal that the notice would indicate that her daughter was caught having sexual intercourse. However, the April 4 notice itself contains no reference to sexual intercourse and the incident report attached to that notice merely refers to a public display of affection beyond handholding and cutting class. Thus, there appears to be no reason why the notice could not have been provided as

required by §100.2(1)(4) while accommodating petitioner’s concern.

Under these circumstances, I find that respondent’s failure to provide written notice of petitioner’s right to question complaining witnesses until the informal conference violated petitioner’s due process rights under 8NYCRR §100.2(1)(4). On this record, petitioner was effectively denied her right to question the complaining witnesses against her daughter. The staff member who actually discovered the incident was not present at the April 9, 2012 informal conference and petitioner was not informed of her right to confront that witness until she was handed the written notice during the informal conference. Under the circumstances, I cannot infer that petitioner knowingly waived her right to a written notice advising her of her right to question witnesses (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of B.B.,59 id. 243, Decision No. 16,017). Accordingly, I find that respondent violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(1)(4) by not providing adequate notice and a genuine opportunity to question complaining witnesses. The two-day suspension must therefore be annulled and expunged from the student’s record.

To the extent petitioner challenges the student’s placement on the district’s “no privileges list” from April18 through May 1, 2012, I note that, as discussed above, this claim is moot except to the extent that petitioner requests expungement. While it is unclear from the record whether placement on the “no privileges list” appears on a student’s record, I note that in-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No.15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No.15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289,Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598). In this case, petitioner discussed the incident with the assistant principal in a telephone call, and also met with the principal and the assistant principal. The student was charged with “behavior which disrupts the educational process,” which, under

respondent’s code of conduct, carries a range of penalties including warnings (oral or written), detention, in-school suspension or suspension from school for up to five schooldays. The record indicates that the student admitted to engaging in inappropriate sexual behavior in the school auditorium during the school day when she should have been in class. While petitioner claims that respondent discriminated against the student and objects to the characterization of the student’s behavior and to the penalty imposed, she does not deny that the student engaged in such conduct. On this record, therefore, petitioner has failed to carry her burden of proof. Under these circumstances, I find that the student was afforded sufficient due process and I do not find respondent’s imposition of the penalty of placement on the “no privileges list” to be improper (see Appeal of D.T., 43 Ed Dept Rep 58, Decision No. 14,916).

Petitioner also claims that respondent “discriminated” against the student by referring the incident to the police and by “keeping her out of classes for three periods and not providing an opportunity to learn during the removal as is indicated by the NYS SAVE legislation.” Petitioner has not carried her burden on these claims. To support her position, petitioner generally claims that the district has been cited for “disproportionality” in terms of its suspension of African-American and Latino students and claims that the district “has created a school environment and culture that does not secure the safety of [her] child, an African American, Latino student with a disability, from danger or harm and has caused her mental and emotional trauma.” However, petitioner submits no evidence that respondent discriminated against her daughter based on her race or ethnicity and has provided no explanation of the legal basis for her discrimination claims, merely making conclusory allegations that the student has been discriminated against.

Respondent admits that the district was cited for disproportionality more than eight years ago, but asserts that this has no bearing on whether it acted properly in this case, and denies that it discriminated against the student. I agree that any such finding is not dispositive in this case. Moreover, as the principal avers, while the district’s code of conduct requires that criminal activity be reported to law enforcement, it does not prohibit the district from notifying law enforcement in situations “either where it might be questionable or undetermined ifthe proposed misconduct constitutes a crime or where the 7

School District refers the matter to law enforcement in the interest of protecting the health or safety of a student(s).” The principal further explains that, in this case, he was “concerned about both students [sic] health and safety and felt it appropriate to contact law enforcement to create a proper record that no issues of coercion or lack of consent [were present] in this situation.” Finally, as noted above, respondent asserts that the student was not removed from class and the record indicates that she was actually cutting class when she was found in the auditorium. Sexual contact between students in school is a matter of grave concern and, under these circumstances, I cannot conclude that petitioner has carried her burden of establishing that respondent discriminated against the student or otherwise acted improperly in this matter.

To the extent petitioner attempts to allege that the student’s rights under §504 were violated, I note that enforcement of §504 lies with the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability,48 Ed Dept Rep 108, 110, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 43 id. 487,Decision No. 15,061). Indeed, petitioner acknowledges in her petition that she has filed a complaint with the Office of Civil Rights, which is an office within the U.S. Department of Education.

Lastly, regarding petitioner’s claim under FERPA, I note that 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 of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M.,46 id. 262, Decision No. 15,502).

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


IT IS ORDERED that respondent’s suspension of the student from April 16 to April 17, 2012 be expunged from her record. END OF FILE