Appeal of C.R., on behalf of her son T.B., from action of the Board of Education of the East Syracuse-Minoa Central School District regarding student discipline.

Decision No. 15,330

(December 6, 2005)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Donald E. Budmen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the East Syracuse-Minoa Central School District ("respondent") to suspend her son, T.B., from school for the remainder of the 2003-2004 school year. The appeal must be sustained in part.

During the 2003-2004 school year, T.B. was a senior at respondent's high school. On February 9, 2004, T.B.'s girlfriend was called to the guidance counselor's office concerning a letter that had been found on a school bus. The letter apparently contained some discussion of the relationship between T.B. and his girlfriend. The girlfriend informed T.B. of her discussion with the counselor and he became very upset. T.B. confronted the counselor and pointed his finger at her and said, "you'll be hearing from my mother."

The counselor apparently felt threatened by T.B. and reported this to the assistant principal. Petitioner received a phone call that afternoon from the assistant principal informing her that T.B. was suspended from school for one day, February 10, 2004 because the counselor felt threatened by him.

By notice dated February 9, 2004 and letter dated February 10, 2004, petitioner was informed by the high school principal of her son's one-day suspension and of her right to discuss the matter at an informal conference with the assistant principal.

On the morning of February 11, 2004, petitioner called the principal to alert her that T.B. was on his way to school and that he was angry and had made certain threats that morning. The School Resource Officer went to T.B.'s first period class, removed him from class and searched him for weapons. The assistant principal called petitioner to tell her that T.B. was being suspended for five days, February 12, 13, 23, 24 and 25. By notice and a letter dated February 11, 2004, petitioner was informed of T.B.'s five-day suspension and superintendent's hearing scheduled for February 25, 2004 to consider a further suspension. The charges against T.B. were insubordination for failing to report "for his scheduled re-entry hearing" after the one-day suspension, and endangering "the health/safety and welfare when he made verbal threats and statements to do harm at the school."

A superintendent's hearing was held on February 25, 2004, and by letter of that date, the superintendent informed petitioner that her son was suspended for the remainder of the school year and would receive home instruction. Petitioner appealed to respondent. Respondent upheld the superintendent's decision and this appeal ensued. Petitioner's request for interim relief was denied on May 13, 2004.

Petitioner claims that the counselor violated her son's right to privacy and requests that the counselor be notified of this violation. Petitioner also maintains that T.B.'s alleged wrongful conduct took place off school grounds, and therefore he could not be punished for such conduct. Petitioner requests that T.B. be reinstated and that any information pertaining to the February 11, 2004 incident be expunged from his records.

Respondent claims that there is competent and sufficient evidence to support its finding that T.B. made credible verbal threats to harm individuals at the high school. Respondent also maintains that it had the authority to discipline T.B. for this off-campus conduct, and that the sanction imposed was proportionate to the offense. Respondent alleges that petitioner has not met her burden of establishing a clear legal right to the relief requested concerning the counselor. Respondent also requests that I disregard the new allegations and materials contained in petitioner's reply and memorandum of law.

Initially, I must address several procedural issues. Respondent objects to petitioner's memorandum of law and reply. A memorandum of law should consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540). Therefore, I have not considered those portions of petitioner's memorandum of law that raise new arguments.

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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). 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.

By letter dated May 7, 2004, petitioner requested permission to submit additional information that she allegedly was unable to obtain from respondent prior to commencing her appeal. In addition, by letter dated September 10, 2004, respondent requested permission to submit a copy of T.B.'s high school diploma dated June 27, 2004. Pursuant to �276.5 of the Commissioner's regulations, I have accepted both submissions.

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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). To the extent petitioner requests T.B.'s reinstatement, the matter is moot since T.B. graduated in June 2004. The appeal is not moot, however, insofar as petitioner seeks expungement of the disciplinary suspension from her son's records (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794; Appeal of K.M., 41 id. 318, Decision No. 14,699) or a finding of misconduct with regard to the counselor.

The record indicates that T.B.'s five-day suspension was imposed by the assistant high school principal. An assistant principal is not authorized to suspend students from school (Education Law �3214[3][b][1]; Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 169, Decision No. 14,204; Appeal of Pinckney, 37 id. 284, Decision No. 13,860). Accordingly, the five-day suspension imposed by the assistant principal, on February 12, 13, 23, 24 and 25, 2004, must be annulled and expunged from the student's record (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 169, Decision No. 14,204). I note that petitioner did not request expungement of the one-day, February 10, 2004, suspension although it also was imposed by the assistant principal.

There is no merit to petitioner's argument that the superintendent lacked the authority to adjudicate this matter because the alleged unlawful conduct occurred off school grounds. Prior Commissioner's decisions have upheld the suspension of students for off-campus conduct (Appeal of K.S., 43 Ed Dept Rep 492, Decision No. 15,063; Appeal of Ravick, 40 id. 262, Decision No. 14,477; Appeal of Orman, 39 id. 811, Decision No. 14,389). Case law has also recognized that students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety or pupils within the educational system or adversely affect the educative process (Matter of Coghlan v. Bd. of Educ. of Liverpool Cent. School Dist., 262 AD2d 949, citingPollnow v. Glennon, 594 F.Supp. 220, 224, affd , 757 F.2d 496).

The decision to suspend a student from school pursuant to Education Law �3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107). A hearing officer may draw a reasonable inference if the record supports the inference (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of a Student with a Disability, 44 Ed Dept Rep 136, Decision No. 15,124; Appeal of M.P., 44 id . 132, Decision No. 15,123). I find substantial evidence in the record to support both the hearing officer's findings of fact and respondent's determination.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved. The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner 's judgment for that of the board of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976). In light of the seriousness of T.B.'s threats, I cannot conclude that a four-and-half-month suspension with alternative instruction provided, is inappropriate. Accordingly, I decline to substitute my judgment for that of respondent.

Finally, I will not admonish respondent's guidance counselor. The Commissioner of Education has no authority to order disciplinary action against school personnel (seeAppeal of J.K., 41 Ed Dept Rep 337, Decision No. 14,705; Appeal of D.H., 41 id. 142, Decision No. 14,640). Furthermore, respondent's guidance counselor has not been joined in this appeal. Accordingly, the claims for relief against the counselor must be dismissed (seeAppeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the records of T.B. any reference to his suspension during the period of February 12 to February 25, 2004.

END OF FILE

---