Appeal of P.N. and M.N., on behalf of their daughter K.N., from action of the Board of Education of the Mexico Central School District regarding student discipline.

Decision No. 15,727

(February 15, 2008)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Kristin B. Greeley, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Mexico Central School District (“respondent”) to impose a “two-block” in-school suspension and a five-game athletic suspension on their daughter, K.N.  The appeal must be dismissed.

K.N. was a sophomore at respondent’s high school (“school”) during the 2005-2006 school year.  On April 27, 2006, K.N. failed to show up to her third and fourth block classes.  As a result, respondent imposed a two-block in-school suspension on K.N. for violating its class-cutting policy.  In addition, a five-game athletic suspension was also assessed.

On April 28, 2006, M.N. met with the assistant principal and principal who advised him of K.N.’s in-school and athletic suspensions.  M.N. immediately appealed to respondent’s athletic review board (“review board”).

On April 28, 2006, the review board met with both M.N. and K.N.  After giving K.N. an opportunity to be heard, the review board denied M.N.’s appeal.  On May 1, 2006, M.N. appealed his daughter’s in-school and athletic suspensions to respondent’s superintendent who also denied his appeal.  Thereafter, M.N. appealed to respondent, who met with petitioners in executive session on May 9, 2006.  On May 10, 2006, respondent denied petitioners’ appeal.  This appeal ensued.

Petitioners contend that K.N.’s absence from class on April 27, 2006 was caused by personal illness and that as a result, it should be deemed “excused.”  In particular, they allege that K.N., who has no history of truancy, became ill at approximately 10:45 that morning and began vomiting in a second floor bathroom.  According to petitioners, at approximately 1:30 p.m., K.N. attempted to go to the school nurse’s office, but was too sick, and instead went to a bathroom on the school’s first floor, where she continued vomiting.  Petitioners claim that K.N. remained there until approximately 2:30 p.m., at which time she walked (in their estimation approximately .6 miles) to her softball team photos at respondent’s middle school.  Among other things, petitioners allege that respondent’s decision to discipline K.N. and not treat her absence as “excused” was irrational, not “fair and just” and not supported by substantial evidence.

Respondent denies that K.N. was sick on April 27, 2006 and argues that despite petitioners’ claims, they were unable to produce any witnesses to her alleged illness.  Respondent also contends that K.N., by her own admission, was able to walk from its high school to its middle school at the end of the school day despite allegedly being too sick to visit the nurse.  In addition, respondent points out that petitioners themselves did not know that K.N. was absent from class on April 27, 2006.  It therefore denies that it acted irrationally and argues that K.N. was appropriately subject to discipline.

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.

In addition, respondent contends that petitioners’ appeal is moot because K.N. served both the in-house suspension and athletic suspension.  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).  However, petitioners have requested that K.N.’s in-school and athletic suspensions be expunged.  I therefore decline to dismiss the appeal as moot (Appeal of a Student Suspected of Having a Disability, 46 Ed Dept Rep 453, Decision No. 15,562).

Respondent has a policy of assigning, for first-time offenders, one block of in-school suspension for each block that a student cuts.  In addition, respondent has another policy, per its athletic agreement with parents and students, of assigning student athletes an athletic suspension for one-third of a sport’s season for any offense resulting in a minimum of a one-half day in-school suspension.

Petitioners argue that K.N. did not cut classes on April 27, 2006 because she was sick and unable to attend class.  Petitioners, however, have failed to produce any evidence to support this contention.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Since petitioners themselves lack personal knowledge of K.N.’s whereabouts during her absence on the April 27, 2006, their mere allegations, without more, are insufficient to support their claim.

I am similarly unable to find, based on the record before me, that respondent abused its discretion in determining that K.N. violated its class-cutting policy.  Though petitioners assert that K.N. was too ill to visit the school nurses’ office by the end of the school day (2:15 p.m.), they admit that 15 minutes after the school day ended she was able to walk a considerable distance to her softball team photos.  In addition, it is undisputed that not a single witness corroborated her claim of illness.  I am unable to find, therefore, that respondent’s determination that K.N. cut class was arbitrary or capricious.

Finally, petitioners appear to assert that respondent was obligated to change their daughter’s absence to an “excused” absence based solely upon a letter that M.N. wrote on May 1, 2006 stating that K.N. was ill on April 27, 2006.  Respondent’s policies provide that all absences are considered “unexcused” until such time as an “appropriate written notification” is received from the parent/guardian giving the reason for the student’s absence.  There is nothing in the record before me however to suggest that respondent was required to deem M.N.’s letter as “appropriate written notification” of K.N.’s alleged illness under the circumstances discussed herein.

I have reviewed the parties’ remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

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