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Decision No. 17,016

Appeal of C.V., on behalf of her son L.V., from action of the Board of Education of the Nyack Union Free School District regarding student discipline.

Decision No. 17,016

(December 12, 2016)

Keane & Beane, P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Nyack Union Free School District (“respondent”) to suspend her son, L.V., and requests that the suspension be expunged from his record.  The appeal must be dismissed.

During the 2013-2014 school year, L.V. was a senior at Nyack High School in respondent’s district.  On December 10, 2013, during lunch, an incident occurred in the café and cafeteria areas (“cafeteria”) of the school.  The school principal witnessed L.V. and other students standing on top of a chair chanting “H”, “O”, “M”, “E.”  According to the record, the students engaged in this chant in an attempt to persuade school officials to dismiss students early due to inclement weather.

By letter dated December 10, 2013, the principal notified petitioner that she intended to impose a three-day out of school suspension from December 12, 2013, through December 16, 2013 as a penalty for L.V.’s conduct on December 10, 2013.  Specifically, the letter stated that L.V. caused a disturbance “in the café which caused a risk to the health, safety and welfare of other students during lunch...” and that this violated the district’s code of conduct.

On December 11, 2013, petitioner and L.V. attended an informal conference with the principal.  During the conference, L.V. admitted to the charged misconduct.  That same day, after the meeting, the principal notified petitioner via letter that she was reducing L.V.’s three-day suspension to a single day of out-of-school suspension.  L.V. served this suspension on December 12, 2013 and returned to school the following day.

By email dated December 15, 2013, petitioner appealed L.V.’s suspension to the superintendent.  In a written determination dated January 7, 2014, the superintendent upheld the suspension.  By email to respondent dated February 5, 2014, petitioner appealed the superintendent’s decision.  In a letter dated March 5, 2014, the district clerk informed petitioner that respondent had upheld the superintendent’s determination at a February 25, 2014 board meeting.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 14, 2014.

Petitioner contends that L.V. was one of three students who received a “harsh punishment,” and that hundreds of students engaged in the same behavior.  She further alleges that the district did not adequately supervise the students in the cafeteria, thereby putting L.V. and other students at risk.  Petitioner requests expungement of the one-day suspension from L.V.’s record.

Respondent contends that the one-day suspension was appropriate as petitioner and L.V. were afforded an appropriate degree of due process, that the decision to suspend was based upon competent and substantial evidence, and that the penalty was not excessive.  Respondent further argues that petitioner has failed to establish any facts upon which she is entitled to relief and that the appeal must be dismissed. 

I must first address a procedural matter.  Petitioner submitted a reply in this matter.  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.

Turning to the merits, petitioner appears to challenge L.V.’s suspension on two grounds.  First, petitioner alleges that the district was not adequately supervising the students in the cafeteria, and that this contributed to L.V.’s misconduct.  Second, petitioner contends that although hundreds of children did “the same thing,” L.V. was one of only three students who received a “harsh” penalty. 

Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).

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., 48 id. 348, Decision No. 15,882).

Here, L.V. admitted that he engaged in the alleged misconduct, and petitioner does not contend otherwise on appeal.  Rather, petitioner appears to argue that the district was not adequately supervising the students in the cafeteria, and that this contributed to L.V.’s misconduct.    I do not accept that the level of supervision provided in a school setting absolves L.V. of his responsibility to conduct himself in an acceptable manner in accordance with the district’s code of conduct.  Moreover, even assuming, arguendo, that the cafeteria was inadequately supervised, petitioner does not establish how any lack of supervision excused L.V.’s conduct, to which he admitted.   

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 this case, the record shows that L.V. stood on a chair and engaged in a chant in the school cafeteria at a time when more than 200 students were present.  L.V. later admitted that he was the “leader” of these chants.  I agree with respondent that L.V.’s conduct “help[ed] to cause and contribut[e] to the overall disturbance”, thereby violating the district’s code of conduct, which prohibits students from “[e]ngag[ing] in any conduct that endangers the safety, morals, health or welfare of others.”  Under these circumstances, respondent was within its discretion in upholding the superintendent’s penalty of a one-day out-of-school suspension.

Finally, petitioner contends that although hundreds of children did “the same thing,” L.V. was one of only three students who received a “harsh” penalty.  The fact that other students involved in the incident may have received different or lesser penalties, or no disciplinary measures at all, does not, of itself, provide a basis for nullifying the discipline imposed on L.V., provided that, as here, the record establishes that he engaged in the misconduct and the penalty imposed is therefore appropriate (Appeal of L.T., 51 Ed Dept Rep, Decision No. 16,242; Appeal of R.Y., 49 id. 336, Decision No. 16,046). 

On this record, petitioner has failed to meet her burden of proving that respondent’s actions in imposing the suspension were arbitrary and capricious.