Decision No. 14,282

(December 23, 1999)

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Central Square Central School District ("respondent") affirming the suspension of his son Nicholas. The appeal must be sustained in part.

On December 23, 1997, Nicholas signed a police statement admitting that at approximately 3:00 a.m. on Sunday, December 14, 1997, he went to Paul V. Moore High School, jumped over a fence surrounding a construction zone and operated a forklift. A police investigation resulted in criminal trespass charges against Nicholas and three other students.

After learning of this incident from the building principal, Michael Mooney, the district’s Director of Health, Physical Education and Athletics, verbally informed petitioner on Tuesday, December 16, 1997, that Nicholas would receive a one-game suspension from the freshman basketball team, to be served on December 19. Following the conclusion of the police investigation on December 23, Jeffery Ziegler, the building Principal, directed Assistant Principal Patricia Haynes to verbally notify Nicholas that he would be suspended after the winter vacation on January 5, 6 and 7, 1998. By letter dated December 23, Ms. Haynes and Mr. Ziegler notified petitioner of Nicholas’ suspension. That letter stated only that Nicholas "has been suspended out of school for trespassing on school property and being in a construction zone. The suspension will be for January 5, 6 and 7, 1998. While on suspension (Nicholas) is not permitted on school property, nor is he allowed to participate in school activities."

On December 26, 1997, petitioner appealed this suspension to respondent, who heard the appeal on January 5, 1998. By letter dated January 6, 1998, respondent upheld the suspension. Also on January 5, Mr. Mooney notified petitioner that Nicholas was temporarily suspended from the freshman basketball team for games on December 19, 1997 and January 6, 1998, and for practices on January 5, 6 and 7, 1998. This letter also provided that "a further violation of these rules will result in permanent suspension from this team. Permanent suspension means that your son is suspended for the remainder of that season and may not participate in any other sports activity during that season."

On January 9, 1998, petitioner appealed the January 5 athletic suspension to the district’s Athletic Appeals Board ("board"). Mr. Mooney notified petitioner that his appeal would be heard on January 13, but while "Nicholas may be accompanied by his parents, [] only Nicholas will be permitted to summarize his appeal." By letter dated January 15, 1998, Mr. Mooney informed petitioner that the board had affirmed Nicholas’s suspension. This appeal ensued. Petitioner’ request for interim relief was denied on February 10, 1998.

Petitioner contends that the one-game suspension on December 19, the three-day academic suspension imposed on December 23 and the athletic suspensions on January 5, 6 and 7 were unlawful, improper, violated district policy, and deprived Nicholas of due process. He asserts that Ms. Haynes had no authority to suspend Nicholas and that the December 23 suspension letter failed to comply with the requirements of 8 NYCRR "100.2(l)(4). In addition, he contends that the athletic suspension imposed by Mr. Mooney on January 5 failed to comply with "100.2(l)(4), improperly contained a "conditional reinstatement of athletic eligibility" in violation of the district’s eligibility requirements, resulted in Nicholas being punished twice for the same offense and deprived him of due process because only Nicholas was permitted to speak at the board hearing. Finally, he claims that the district provided inadequate alternative instruction and failed to comply with his Freedom of Information Law ("FOIL") requests.

Respondent asserts that the petition is moot, fails to state a claim upon which relief may be granted, and that petitioner failed to exhaust administrative remedies. It also asserts that it had a rational basis for suspending Nicholas, afforded him due process and adequate alternative instruction, and complied with its obligations under FOIL, over which the Commissioner has no jurisdiction.

I must first address several procedural issues. Respondent objects to petitioner’s submission of a supplemental affidavit and argues that petitioner’s reply and reply affidavits contain information unresponsive to its answer. Petitioner also submits a reply memorandum of law. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Muench, 38 Ed Dept Rep 649, Decision No. 14,110; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). Nor may a reply memorandum of law be used to add belatedly new assertions that are not part of the pleadings. While I have reviewed petitioner’s submissions, I have not considered those portions containing new allegations or exhibits which are not responsive to new material or affirmative defenses set forth in the answer.

A number of petitioner’s claims concern alleged FOIL violations. The appropriate forum for addressing such violations is the Supreme Court of the State of New York, not a "310 appeal to the Commissioner of Education (Public Officers Law "89; Appeal of Breud, et al., 38 Ed Dept Rep 748, Decision No. 14,133; Appeal of Kushner, 36 id. 261, Decision No. 13,719). Therefore, I am without jurisdiction to decide those claims.

The appeal, however, must be sustained in part on the merits. Education Law "3214(3)(b) allows a board of education to delegate to a school principal the authority to suspend a student from school for a period not to exceed five days. However, such authority may not be delegated to an assistant principal (Ross v. Desare, 500 F.Supp. 928 [S.D.N.Y. 1977]; Appeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860; Appeal of Caulfield, 18 Ed Dept Rep 574, Decision No. 9,973). Petitioner argues that since Ms. Haynes suspended Nicholas, the suspension is unlawful. However, it appears from the record that Ms. Haynes verbally informed Nicholas that he was going to be suspended, but did not actually suspend him at that time. Rather, the suspension was imposed by means of the December 23 letter, signed by both Ms. Haynes and Mr. Ziegler. Accordingly, I find that the principal actually imposed the suspension.

However, the notice contained in the December 23 letter is deficient. Section 100.2(l)(4) of the Commissioner’s regulations provides that written notice of a short-term suspension shall:

Education Law "3214(3)(b) also provides that at the informal conference, the parent may ask questions of the complaining witnesses. These provisions have been incorporated into respondent’s Policy 5311.1.

Although Mr. Ziegler and Ms. Haynes stated in the December 23 letter: "if you have any questions, please call," it is undisputed that they failed to give petitioner notice of his right to request an immediate informal conference with Mr. Ziegler. Such failure requires that the suspension be annulled and expunged from Nicholas’ record (Appeal of Tooley, 39 Ed Dept Rep ___, Decision No. 14,253; Appeal of Student with a Disability, 38 id. 378, Decision No. 14,059; Appeal of Jones, 35 id. 1, Decision No. 13,444).

Petitioner’s contentions concerning the athletic suspensions are without merit. First, I note the suspensions have already been served and the freshman basketball season concluded on January 22, 1998. Accordingly, to the extent petitioner sought Nicholas’ reinstatement to the team for those games or prevention of what petitioner terms "conditional reinstatement," the denial of interim relief on February 10, 1998 rendered this issue moot (Appeal of Wright, 38 Ed Dept Rep 756, Decision No. 14,134).

Furthermore, petitioner’s appeal of the athletic suspensions is premature and in violation of the district’s internal procedures which require that petitioner appeal the board’s decision first to the superintendent, and then to respondent, prior to instituting this appeal to the Commissioner. This appeal was initiated on January 23, 1998. The superintendent did not uphold the board’s decision until February 6, and respondent did not uphold the superintendent’s decision until July 6. Accordingly, petitioner failed to exhaust his administrative remedies.

I have considered petitioner’s remaining arguments and find them without merit.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the academic suspension of Nicholas Knapp on January 5, 6 and 7, 1998 be expunged from his record.

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