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Decision No. 17,022

Application of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Sayville Union Free School District regarding student discipline.

Decision No. 17,022

(January 10, 2017)

Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta and Ashley C. Pope, Esqs., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Sayville Union Free School District to impose discipline on their son (“the student”).  The appeal must be dismissed.

At the time of the events relevant to this appeal, the student attended ninth grade in respondent’s district.  During the school day on February 8, 2016, the student sat at a table located near a copy machine.  At some point, the school librarian observed the student hurriedly returning to his seat.  The school librarian subsequently realized that the copy machine was running.  Upon inspection, the copy machine had printed about 30 copies and was programmed to make 999 copies.  The school librarian discovered a color photograph of a teacher in the machine; however, the photograph did not copy because it had been placed upside down.  According to a behavior detail report completed by the school librarian, she “knew” the student initiated the copying because she witnessed him “going back to [his] table.”  Later that same day, several teachers observed the student circulating copies of a teacher’s photograph, the same color photograph which was discovered in the copy machine.[1]

The high school principal imposed a single day of in-school suspension as a penalty for the student’s role in these two incidents.  The student served this suspension on February 12, 2016.  Petitioner appealed the suspension to respondent’s superintendent who, in a written decision dated February 24, 2016, stated that the short-term suspension was “justified” but agreed to expunge the suspension from the student’s record.  Petitioners subsequently appealed this determination to respondent.  In a decision dated March 14, 2016, respondent denied petitioners’ appeal as moot because the superintendent had “already expunged” the one-day suspension from the student’s record.  This appeal ensued.

Petitioners contend that the district failed to provide sufficient notice of the student’s suspension and that the student was not guilty of the charged offenses.  With respect to notice, petitioners contend that they did not receive any oral or written notice of the suspension and only learned of the suspension through a “Parent Portal.”  As for the suspension, petitioners argue that the student was not guilty of the charged offenses.  Petitioners argue that the student denied involvement in the incident and that no one witnessed the student arranging the photo on the copier.  Petitioners further allege that the student could not have distributed copies of the photograph if he did not make them in the first instance.

Petitioners also assert that the superintendent improperly agreed to expunge the one-day sentence “solely ... for the district to be incompliance [sic] with the law.”  Petitioners further allege that respondent failed to conduct an investigation into the circumstances surrounding the suspension, and that its March 14, 2016 decision was improperly signed by a district clerk.  Petitioners additionally argue that respondent’s decision was flawed and contained irrelevant information.

Petitioners further allege that the student was “repeatedly suspended for behaviors that are manifestations of his diagnosis.”  In this regard, petitioners contend that a manifestation determination review was held on March 7, 2016, that they are “still waiting” for a functional behavioral assessment (“FBA”) to be completed, and that a behavioral intervention plan (“BIP”) has not yet been implemented.

For relief, petitioners seek determinations that they received inadequate notice of the February 12, 2016 in-school suspension; that the student did not commit the offenses underlying the in-school suspension; that the principal expunged the suspension “solely ... to be incompliance [sic] with the law”; and that “a proper investigation did not take place.”

Respondent contends that the appeal is moot because the student served the one-day suspension and the suspension has been expunged from the student’s record.  Respondent further argues that it complied with all legal requirements.  Respondent also asserts that petitioners’ claims pertaining to the manifestation determination review and the student’s FBA and BIP are outside of my jurisdiction.  Respondent additionally argues that it was not required to conduct an investigation in connection with petitioners’ appeal.  Respondent requests that the appeal be dismissed.

I must first address a procedural matter.  Petitioners 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.

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).  Here, the student served the single day of in-school suspension on February 12, 2016 and, as petitioners admit in their petition, respondent has expunged this suspension from the student’s record.  Although petitioners seek determinations related to the manner in which the in-school suspension was imposed, no meaningful relief can be issued at this point and any review of respondent’s actions would be academic under these circumstances.  I note in this regard that petitioners are seeking declaratory relief and it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

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




[1] While not entirely clear, it appears that the photograph distribution occurred after the copying incident.  A behavior detail report completed by the school librarian stated that: “[a]s per other teachers, [the student] was then seen distributing this same picture throughout the building” (emphasis added).  Petitioners endorse this chronology in their petition, while respondent’s answer does not identify the sequence of these events.