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Decision No. 17,026

Appeal of D.F. and N.F., on behalf of their son D.F., from action of the Board of Education of the Miller Place Union Free School District regarding student discipline.

Decision No. 17,026

(January 17, 2017)

Guercio & Guercio, LLP, attorneys for respondent, Kathryn J. Maier, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Miller Place Union Free School District (“respondent”) declining to remove a record of an in-school suspension from the disciplinary record of their son, D.F.  The appeal must be dismissed.

On Friday, May 31, 2013, D.F., a fifth grade student returning from a field trip on the bus, had an altercation with another student on the bus (hereafter “John Doe” or “J.D.”).  When the bus arrived at school, a teacher found John Doe crying on the bus and brought him to the elementary school’s assistant principal.  The record indicates that student witness accounts of what exactly occurred between D.F. and J.D differ.  J.D. reported to the assistant principal that the incident began when D.F. kept interrupting him.  Petitioner alleges that J.D. intervened in a conversation D.F. was having with a friend and J.D. then began calling D.F. names and taunting him.  However, regardless of who initiated the incident, it appears that J.D. said something to D.F. which provoked D.F. into throwing foam stuffing from his seat cushion at J.D.  There was some mutual name-calling and then D.F. began to poke J.D., making physical contact.  J.D. slapped D.F.’s hand away, apparently hitting him in the head.  The name calling continued, escalating first to unintentional then intentional spitting by J.D. on D.F.  D.F. moved to another seat and J.D. began to cry.

That day, the assistant principal met with J.D. and D.F., as well as other student witnesses and faculty.  The school’s principal was notified of the results of the assistant principal’s investigation.  The principal determined that D.F. would be assigned to one day of in-school suspension for the following Monday, June 3, 2013.[1]

Later that afternoon, D.F.’s parents met with the assistant principal to discuss this matter.  After expressing displeasure at the outcome of the investigation and the penalty imposed, they requested a meeting with the school’s principal.  After some email discussions over the weekend and an in-person meeting at 7:00 AM on Monday, June 3, 2013, petitioners stated that they believed D.F. was a victim of bullying by J.D. and that the penalty imposed was excessive.  While agreeing that D.F. should have handled things in a different manner, petitioners assert that their son was afraid and was the victim, not the perpetrator, in this matter.  Respondent’s principal upheld the one day in-school suspension.

Petitioners left the meeting along with D.F.  As a result, D.F. failed to serve his day of in-school suspension.  Nevertheless, respondent asserts that the district is not requiring D.F. to make up this missed day.  Petitioners then appealed to respondent board.  The appeal was denied in a letter dated June 21, 2013.  Petitioners wrote to respondent, expressing their displeasure with the board’s determination.  The instant appeal then ensued.  By letter dated July 10, 2013, respondent superintendent stated, in essence, that there would be no further discussion on this matter except in context of the appeal to the Commissioner of Education.

Petitioners contend that D.F.’s record should be expunged because he was the victim of bullying and respondent failed to properly investigate the matter or take D.F.’s welfare into account.   While recognizing that D.F. could have taken alternative actions when dealing with J.D., petitioners argue that this sanction is disproportionate to the severity of the offense.  In their correspondences with officials of respondent district, petitioners assert that alternative actions such as, for example, intervention or corrective instruction could be taken.

Respondent states that the discipline imposed by the principal is supported by the fact that D.F. actually participated in the incident and that the penalty imposed was appropriate and not excessive.  Respondent asserts that all of its actions were appropriate and proper. Respondent argues that the petition should be dismissed as improperly served, unverified, moot, and that any potential re-serving of the petition would be untimely.  Respondent claims that petitioners have not established a clear legal entitlement to the relief requested. Respondent further states that all findings of guilt were based on competent and substantial evidence and are in no way arbitrary and capricious.

I must first address several procedural matters.  First, respondent asserts that the petition was not verified.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  However, I note that the copy served upon my Office of Counsel does contain an affidavit of verification sworn to by both petitioners and dated July 6, 2013.  I therefore decline to dismiss the petition on this basis.

Second, respondent asserts that the petition must be dismissed as moot because the one-day suspension was never served and it is not requiring D.F. to make it up.  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).  However, in this appeal, petitioners seek expungement of the in-school suspension from D.F.’s permanent record.  It is well-settled that an appeal will not be dismissed as moot to the extent the petitioner seeks expungement of a disciplinary action from a student’s record (see e.g. Appeal of E.B. and F.B., 55 Ed Dept Rep, Decision No. 15,545*; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  Respondent does not assert that this in-school suspension has not been placed in D.F.’s record or that it was subsequently expunged (cf. Appeal of P.C., 54 Ed Dept Rep, Decision No. 16,633 [appeal dismissed as moot where record of suspension expunged]).  Therefore, I decline to dismiss the appeal as moot with respect to the expungement issue.  

Third, respondent alleges that petitioners failed to properly serve the petition.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Petitioners’ affidavit of service indicates that the petition was served on respondent by leaving the petition with an individual whose title is described as “secretary.”  Respondent claims that the person served was a receptionist in the “front of the central office building” and was not authorized to accept service on behalf of the district. Petitioners did not submit a reply to contradict respondent’s assertion of improper service.

When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Willis, 50 Ed Dept Rep, Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956). Because petitioner failed to serve a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations, the appeal must be dismissed.

Even if this appeal were not dismissed on procedural grounds, 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 R.C. and D.C., 55 Ed Dept Rep, Decision No. 16,674; Appeal of D.K., 48 id. 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 R.C. and D.C., 55 Ed Dept Rep, Decision No. 16,674; Appeal of D.K., 48 id. 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).

The May 31, 2013 letter notifying petitioners of the in-school suspension states that D.F. engaged in inappropriate physical behavior – disorderly, violent or disruptive conduct or conduct which endangered the safety, morals health or welfare of others.  Here, petitioners admit that their son poked J.D. and threw foam at him, but ask that the in-school suspension be expunged from D.F.’s records because he was allegedly being harassed by J.D.  Petitioners met with the school principal, received written notices, and their appeal was entertained by respondent board.  Petitioners had an opportunity to discuss the conduct with the person authorized to impose the discipline, and there is no indication or allegation that the procedures followed were not fair.  The crux of petitioners’ argument appears to be that their son was justified in his actions because D.F. was allegedly being bullied by J.D.  While nothing herein should be construed as minimizing the gravity of such issues, I note that even if petitioners proved that J.D. instigated the dispute by harassing D.F., which they have not done, that cannot be used to justify or excuse D.F.’s actions in physically assaulting another student and would not nullify a finding of guilt (see e.g. Appeal of the Parent of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,574; Appeal of R.Y., 49 id. 336, Decision No. 16,046). Respondent’s imposition of a one day in-school suspension, which D.F. did not serve and which respondent is not requiring D.F. to make up, certainly cannot be said to be disproportionate to the offense.  While petitioners are free to disagree over the sanction’s imposition, respondent has satisfied its obligation of procedural fairness with respect to the in-school suspension and the appeal must be dismissed (Appeal of L.O. and E.O., 49 Ed Dept Rep 219, Decision No. 16,007).

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




[1] Although no details were provided in the instant appeal, I note that respondent asserts that any other students involved in this matter were “appropriately dealt with under the District’s Code of Conduct.”

*(Sic) Should read 53 Ed Rep 16,545.