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Decision No. 17,172

Appeal of A.B., on behalf of her son A.D., from action of the Board of Education of the Baldwin Union Free School District regarding student discipline.

Decision No. 17,172

(August 29, 2017)

Burnett Law Firm, P.C., attorneys for petitioner, Nadine S. Burnett, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel


ELIA, Commissioner.--Petitioner challenges the suspension of her son, A.D. (“the student”), by the Board of Education of the Baldwin Union Free School District (“respondent”).  The appeal must be dismissed.

The parties sharply dispute the facts which led to the student’s suspension.  The record indicates that on April 7, 2017, the last day of school prior to the district’s April break, the student was involved in an altercation with a security guard and, subsequently, respondent’s dean of students (“dean”) during the dismissal process in the “Commons” area of the district’s high school.

According to petitioner, the student was falsely accused by a security guard of allowing students to re-enter the high school after dismissal.  Petitioner further states that when the student attempted to pick up his book bag, the security guard grabbed him by the neck.  The dean subsequently appeared and “immediately started yelling” at the student.  Petitioner alleges that, thereafter, the student complained of neck pain and “had red marks around his neck.”

Respondent asserts that the student was causing a disturbance in the Commons area and was refusing to leave the premises.  Respondent further contends that the student became physically and verbally aggressive with the dean.  As a result of this altercation, the dean returned to his office to call the Nassau County Police who later arrived and received a statement from the dean. 

The record further indicates that, following the incident, the dean attempted to contact petitioner about the incident when the student appeared in his office.  The dean stated that the student appeared agitated and insisted that the dean contact petitioner immediately.  The dean called petitioner, and left a message indicating that the student “was involved in a situation in which he refused to leave the High School.”

By letter dated and received by petitioner on April 19, 2017, the high school principal informed petitioner that the student would be suspended for five days as a result of his insubordinate and aggressive behavior on April 7, 2017 which violated respondent’s code of conduct.  The student was suspended for five days, April 20-21 and April 24-26, 2017.  The letter further indicated that petitioner had the right to request an informal conference with the principal.  Petitioner requested such an informal conference, which was held on April 20, 2017.

The record indicates that the informal conference was attended by petitioner, the principal, both deans of students assigned to the high school – including, as complaining witness, the dean with whom the student had the altercation - and a note taker.  During the conference, petitioner disputed the facts and circumstances surrounding the events of April 7, 2017.  Petitioner disputed the characterization of the interaction with the dean, as described above, and denied that the student was aggressive toward or made physical contact with the dean.  Petitioner further requested to view security camera footage of the area where the incident occurred.  Petitioner claims that the principal responded “No[,] you will not see the video,” but respondent asserts that the dean explained that no security footage captured the general area where the incident occurred.  At the conclusion of the informal conference, the principal upheld the student’s suspension. 

By letter dated April 21, 2017, the principal informed petitioner of her right to appeal the student’s suspension to the superintendent.  The letter further informed petitioner that should she be unsatisfied with the result of an appeal to the superintendent, an appeal may then be taken to respondent and, if respondent’s determination was unfavorable, an appeal could be made to the Commissioner of Education.  This appeal ensued.  

As noted, petitioner disputes the facts and circumstances surrounding the events of April 7, 2017.  Specifically, petitioner denies that the student had any physical or verbal altercation with the dean.  Petitioner contends that, prior to any interaction with the dean, the student was placed in a “headlock” by a security guard at the school which resulted in an injury to the student.  Petitioner seeks a determination that the student was not insubordinate, did not behave aggressively, or have any physical contact with the dean; rescission or expungement of the suspension from the student’s record; and a determination that the security guard involved in the incident be terminated or reassigned to another school.

Petitioner further requests “[i]nterim relief ordering” that respondent preserve all surveillance videos of the Commons area on April 7, 2017 and allowing her and her attorney to review the videos. 

As an affirmative defense, respondent contends that petitioner failed to exhaust all administrative remedies because she failed to appeal the student’s suspension to the superintendent and respondent consistent with respondent’s code of conduct.  Respondent further contends that, to the extent petitioner seeks relief against the security guard, the petition should be dismissed for failure to join a necessary party.  Respondent asserts that the petition should be dismissed because it fails to state a claim upon which relief may be granted, and that the suspension imposed on the student was neither arbitrary nor capricious.  Finally, respondent asserts that it has preserved the surveillance video, but that it is prohibited under the federal Family Educational Rights and Privacy Act (20 U.S.C. §1232g; 34 CFR Part 99) (“FERPA”) from permitting petitioner to view the video.

I must first address the procedural matters.  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.

Next, respondent argues that the appeal should be dismissed for failure to exhaust administrative remedies. Students who are suspended from school for five days or less may appeal their suspension directly to the Commissioner, unless a school district has adopted a policy that would require students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578).  Here, the record indicates that respondent’s code of conduct requires parents to appeal an out-of-school suspension of five or fewer days first to the superintendent, and then to respondent, prior to filing an appeal pursuant to Education Law §310.  Consistent with this policy, by letter dated April 21, 2017, respondent’s principal provided petitioner with notice of her right to appeal the suspension to the Board of Education.  There is no evidence in the record that petitioner appealed to the superintendent or respondent before bringing the instant petition.  Although petitioner claims in a reply that she was not notified of respondent’s appeal process “in writing or orally,” this is contradicted by the principal’s sworn statement that she sent the April 21, 2017 letter to petitioner.  Petitioner does not specifically state that she did not receive this letter, a copy of which was attached as an exhibit to respondent’s answer.  Consequently, petitioner has failed to exhaust her administrative remedies and the appeal must be dismissed. 

Additionally, to the extent petitioner requests that the security guard be dismissed or reassigned, I have previously held that the board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (see e.g., Appeal of M.B., 56 Ed Dept Rep, Decision No. 17,044; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773).  Therefore, an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate vehicle for such relief.

Moreover, even had I the authority to consider this claim, petitioner failed to join the security guard whom she seeks to be disciplined and/or reprimanded.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The security guard would clearly be affected by a reprimand or termination and, thus, is a necessary party.  Therefore, to the extent petitioner seeks discipline or reprimand of such individual, the appeal must be dismissed for non-joinder of necessary parties.

Finally, petitioner seeks disclosure of video surveillance of the area where the alleged incident occurred.  To the extent that petitioner seeks discovery of evidence that respondent intended to rely on, although the instant appeal involves only a short-term suspension imposed pursuant to Education Law §3214(3)(b), in a case in which petitioners alleged a denial of due process resulting from a school district’s failure to disclose evidence during the course of a student disciplinary hearing conducted pursuant to Education Law §3214(3)(c) for a suspension of more than five days, the Commissioner found that such petitioners cited “no statutory authority for such discovery, and indeed there is none” (Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723).  As the Commissioner noted in that case, “[i]n the absence of any express statutory mandate, due process does not impose an affirmative obligation on respondent board to provide the student with a copy of the evidence it intends to rely on in advance of a disciplinary hearing conducted pursuant to Education Law §3214(3)...” (Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723).

I note that there is no indication that petitioner requested the video surveillance for her own use by making a request under the Freedom of Information Law (Public Officers Law, Article 6) (“FOIL”) or, with respect to her son, pursuant to FERPA.  Should she make such a request and be denied, both FOIL and FERPA set forth procedures by which she may appeal such denial to the appropriate authority.

In any case, I note that, in an affidavit submitted together with respondent’s verified answer, the dean states that he has been directed to preserve all video surveillance of the Commons area for April 7, 2017.  While the record contains assurances from respondent about the preservation of general security footage, I remind respondent of the obligation of school districts to retain records in accordance with the records retention schedule set forth in Records Retention and Disposition Schedule ED-1 (8 NYCRR Appendix I).

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