Appeal of a STUDENT WITH A DISABILITY, by her parents, from action of the Board of Education of the Yorktown Central School District regarding discipline.

Decision No. 16,343

(April 2, 2012)

Peter D. Hoffman, P.C., attorneys for petitioner, Peter D. Hoffman, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May  and Marc E. Scharff, Esqs., of counsel

KING, JR., Commissioner.--Petitioners appeal the suspension of their daughter by the Board of Education of the Yorktown Central School District (“respondent”).  The appeal must be dismissed.

Petitioners’ daughter was an eleventh grade student (the “student”) at respondent’s high school during the 2009-2010 school year.  On November 2, 2009, the student allegedly told her guidance counselor that she smoked marijuana on school grounds earlier that day.  Later that day, a search was conducted by respondent and a box cutter was found in the student’s backpack.  The student was immediately suspended and by letter dated November 5, 2009, respondent’s superintendent notified petitioners that a superintendent’s hearing was scheduled for November 9, 2009.  The letter charged the student with “conduct which endangers the safety, morals, health and/or welfare of others; conduct which is disorderly, violent and/or disruptive, and insubordination” and specified that on November 2, 2009, the student admitted to her guidance counselor that she used marijuana on school grounds and was found to be in possession of a dangerous weapon (box cutter).  Additionally, the letter listed provisions of respondent’s code of conduct and rules and regulations that were allegedly violated by the student.

The superintendent’s hearing was adjourned until November 10, 2009.  On that day, no witness testimony was taken and the parties agreed to the terms of a settlement.  The parties also agreed that the students’ actions were a manifestation of her disability.  The settlement terms were placed on the record, before the hearing officer to be memorialized in writing within the next few days.  However, the parties were unable to agree on the terms of the written stipulation of settlement and therefore one was not entered into.  The hearing officer wrote a report and recommended that the superintendent accept the proposed settlement.  By letter dated December 8, 2009, the superintendent accepted the hearing officer’s report.  Petitioners appealed the suspension to respondent and on January 26, 2010 the appeal was denied.  This appeal ensued.

Petitioners argue that the student was improperly suspended without being afforded due process; the penalty was excessive; the hearing officer and the superintendent were biased; respondent violated the Individuals with Disabilities Education Act (IDEA), and the charges were unclear.  Petitioners seek to have the suspension expunged.

Respondent argues that the settlement placed on the record should be enforced because petitioners, in the presence of their attorneys, knowingly and willingly agreed upon the terms of settlement.  Respondent also argues that petitioners should be equitably estopped from challenging the validity of the settlement.

Under certain conditions, parents may waive a student’s due process rights under Education Law §3214 (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818; Appeal of a Student Suspected of Having a Disability, 41 id. 390, Decision No. 14,722).  For such a waiver to be valid, however, it must be "voluntary, knowing and intelligent" (Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976).  The district must provide the student and parents with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818).

At the hearing, petitioners’ attorney, in their presence, entered into a settlement stipulation, on the record and before the hearing officer, waiving the students’ due process rights and agreeing to a 45 day Interim Alternative Educational Setting (IAES).  I have listened to the recording of the November 10, 2009 hearing and it is evident that the petitioners voluntarily, knowingly and intelligently waived the students’ due process rights.  Also, the hearing officer’s report accurately states what was agreed upon at the hearing.  Additionally, soon after the hearing, respondent’s attorney proposed a stipulation agreement which stated the rights petitioners were waiving.

The issue therefore, is whether the settlement stipulation entered into at the hearing is valid although the parties were unable to memorialize the terms in a written agreement.  “To be enforceable, a stipulation must be 1) made in open court, 2) written and subscribed, or 3) reduced to a court order and entered” (Conlon v. Concord Pools, Ltd., et al., 170 AD2d 754 citing CPLR §2104).  Voluntary stipulations agreed upon at hearing should be given the same effect as if made in a court of law (Appeal of Martha and Peter F., 39 Ed Dept. Rep. 545, Decision No. 14,305 citing Central New York Regional Market Authority v. John B. Pike, Inc., et al., 120 AD2d 958, motion for leave to appeal denied, 69 NY2d 602; seealsoe.g.Kleinmann v. Bach, et al., 239 AD2d 861, motion for leave to appeal denied, 82 NY2d 658; Buckingham Mfg. Co., Inc. v. Frank J. Koch, Inc., 194 AD2d 886).  In this case, even though the parties were unable to memorialize the stipulation, the student continued to abide by the terms of the settlement and remained in the IAES for the 45 days agreed upon.  Petitioners did not request that the hearing be reconvened.  In fact, in a November 17, 2009 email to the district’s attorney, petitioners’ attorney stated:

There is an agreement made on the record and the parents and this office is living by the agreement.  I am hopeful that the district will do the same ....  Overall, I see no reason to have a further written agreement and would be happy to rely upon the record.

In light of this statement, I find petitioners’ argument that there was no agreement on the record to be disingenuous.  Petitioners are estopped from claiming that there was no stipulation because they refused to sign the written stipulation; abided by the terms of the stipulation stated on the record at hearing and their attorney previously argued that the terms as described at the hearing were sufficient, making a written agreement unnecessary.  “A party cannot avoid a settlement by refusing to sign settlement papers memorializing the settlement terms reported to the court” (Acot v. New York Medical College, 99 Fed Appx. 317).  Further, “the fact that parties to an oral agreement contemplate memorializing their agreement in a subsequently executed document will not prevent them from being bound by the oral agreement” (Acot v. New York Medical College, id. citing V’Soske v. Barwick, 404 F2d 495).  Therefore, although the stipulation was not memorialized, I find that a valid stipulation of settlement was entered into amongst the parties.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  A party seeking to set aside a stipulation bears a heavy burden of proof, and stipulations are seldom set aside without a showing of fraud, collusion, mistake, accident or some other similar grounds (Appeal of Martha and Peter F., 39 Ed Dept. Rep. 545, Decision No. 14,305; seee.g.Hallock, et al. v. State of New York, et al., 64 NY2d 224).  Petitioners give no reason why the stipulation should be set aside.  Rather, they argue that because a full hearing was not held the student was deprived of due process.  However, as already discussed, I find that the waiver of due process was knowing and voluntary and that petitioners, who previously argued that the stipulation of settlement entered into on the record was valid, are estopped from claiming that there was no stipulation of settlement.  As a result, the appeal must be dismissed.

Finally, a stipulation which resolves a proceeding makes prior procedural errors moot (Appeal of Martha and Peter F., 39 Ed Dept. Rep. 545, Decision No. 14,305 citing Birchwood Towers #2 Associates v. Schwartz, et al., 98 AD2d 699, and seee.g.64th Street-3rd Ave. Associates v. Wall, 257 AD2d 487 “[A]ppellants attempt to assert defenses responsive to respondent landlord’s underlying nuisance cause of action, settled by the stipulation, is barred by the stipulation”).  Therefore, I need not address petitioners’ remaining contentions relating to the superintendent’s hearing.

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

THE APPEAL IS DISMISSED.

END OF FILE.