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Decision No. 17,926

Appeal of M.S., on behalf of her daughter M.H., from action of the Board of Education of the Bay Shore Union Free School District regarding student discipline.

Decision No. 17,926

(October 5, 2020)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Bay Shore Union Free School District (“respondent”) to impose discipline on her daughter, M.H. (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student attended respondent’s senior high school.  On December 20, 2019, a school security officer (“security officer”) was assigned to monitor students “within the large cafeteria” of the high school.  During that time, he heard a “loud sound,” which he recognized to be “an activated stun gun.”  The security officer then observed several students moving away from a table in the cafeteria.  The security officer reported this incident to the high school’s dean of students (“dean”).  The dean and the security officer subsequently reviewed surveillance footage of the incident.  Upon review of the surveillance footage, both the dean and security officer determined that the video depicted the student activating a stun gun.

The dean subsequently escorted the student to his office and showed her the surveillance video.  During their discussion, the student confirmed that she had the stun gun in her possession and handed it to the dean.  Although the parties dispute whether such search was consensual, the record reflects that the dean searched the student’s book bag and found pepper spray, a “vape battery” and “two Vietnam War bullets, which had been previously stolen from a Bay Shore High School display case.”

By letter dated December 20, 2019, the high school principal (“principal”) proposed a suspension of the student for a period of five days for “weapons possession, possession of paraphernalia (vape pen), and theft.”

By letter dated January 6, 2020, respondent’s superintendent indicated that a hearing would be held on January 10, 2020 to determine whether an additional period of suspension was appropriate for the same violations of the student code of conduct identified in the principal’s letter.

The hearing, presided over by a hearing officer, convened on January 10, 2020.  In a written recommendation dated January 16, 2020, the hearing officer recommended that the student be found guilty of the charges of “Weapons Possession and Possession of Paraphernalia,” but not guilty of the charge of theft.  By letter dated January 16, 2020, the superintendent adopted the recommendations of the hearing officer.  With respect to penalty, the superintendent imposed a suspension of “one year,” which would result in the student “returning on or about January 5, 2021.”

On March 5, 2020, petitioner appealed the superintendent’s decision to respondent.  By letter dated March 13, 2020, respondent’s president indicated that the board considered and denied petitioner’s appeal on March 11, 2020.  This appeal ensued.

Petitioner claims that the student’s suspension for one year is excessive and disproportionate to the charges for which she was found guilty.  Petitioner claims that the student carried the stun gun for self-protection due to an incident that occurred two years prior.  Petitioner also maintains that respondent “exposed [the student] to a post-traumatic stress condition” when school staff called the police to investigate the incident.  Petitioner further alleges, with respect to the charge of possession of drug paraphernalia, that the item discovered was a vape pen battery that was given to the student by a friend.  Moreover, petitioner argues that possession of a battery does not “fall within the category listed in the code of school conduct.”  Petitioner also contends that the search of the student’s bag “constituted an unreasonable search” in violation of the school code of conduct, as well as the federal and State constitutions.  For relief, petitioner requests that the student’s suspension be expunged and that she be allowed to return to school.

Respondent contends that the petition must be dismissed for lack of service.[1]  Respondent further contends that its determination was neither arbitrary nor capricious.  Respondent maintains that the student admitted her guilt to the charge of possession of a weapon and that its suspension of the student for one year based on this charge as well the possession of paraphernalia charge was not excessive.  Respondent further argues that the student consented to a search of her bookbag, thus rendering respondent’s search reasonable.

The appeal must be dismissed for lack of personal service.  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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Additionally, effective April 7, 2020, Section 275.8(f) of the Commissioner’s regulations allows for alternative service during the time period of any movement restrictions or school closures directed by the Governor pursuant to an Executive Order during the COVID-19 crisis.  Specifically, the regulation states, in pertinent part:

[A] party may serve pleadings and supporting papers by the following alternative means: (1) by mailing the petition, notice of petition and all supporting papers by first class mail in an envelope bearing the legend “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... in the case of a school district, to the attention of the district clerk and superintendent of schools, ... and (2) on the same date as the mailing, emailing the petition, notice of petition and all supporting papers under the subject heading “APPEAL TO THE COMMISSIONER OF EDUCATION” (in capitalized letters) ... in the case of a school district, to both the district clerk and superintendent of schools....

Respondent asserts that it was not served with a copy of the instant petition at any time.  Indeed, it appears that respondent only became aware of the instant appeal when my Office of Counsel contacted respondent to inquire whether it received such submission.  In support of this contention, respondent’s district clerk asserts in an affidavit that she was “never served with the [petition] ... nor was [she] served with any other pleadings, papers and/or documents by any individual” regarding this appeal.  The district clerk further indicates that she did not “receive [] via mail and/or email any pleadings, papers, and/or documents” regarding this appeal.

Petitioner did not submit a reply or otherwise respond to these assertions.  The only evidence concerning service of the petition is a handwritten note on an affidavit of personal service that was submitted to my Office of Counsel.  Under the heading “Unsuccessful Attempts to Serve Respondent,” the note states: “school closed, building closed due to the pandemic.”  The note further indicates that petitioner attempted to serve the petition on the district on April 10, 2020 at 11:00 a.m.

While I am sympathetic to petitioner’s circumstances, I am nevertheless constrained to dismiss the appeal for lack of service.  Beyond the handwritten note suggesting that petitioner attempted to serve respondent at its district offices, there is no indication in the record that petitioner attempted service at any other time or in any other manner.  In this respect, I note that section 275.8(f) of the Commissioner’s regulations, effective April 7, 2020, permitted electronic and mail service upon the district such that petitioner would not have been required to personally serve the petition.[2]  Therefore, the appeal must be dismissed as a result of petitioner’s failure to serve a copy of the petition on respondent (see Application to reopen the Appeal of Martinez, 59 Ed Dept Rep, Decision No. 17,831; Appeal of Barrientos, 58 id., Decision No. 17,450).

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




[1] As a consequence of this lack of service, respondent also contends the petition should be dismissed for failure to serve an appeal within 30 days of respondent’s March 13, 2020 determination.


[2] Although this regulation only took effect several days prior to the expiration of the 30-day time limitation, the Commissioner, in her sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown (8 NYCRR §275.16).