Appeal of J.H. and T.H., on behalf of their son J.H., from action of the Board of Education the City School District of the City of Auburn, Assistant Principal Madalyn Stowell, Principal Brian Morgan, Teacher Deborah Reilly, Assistant Superintendent for Instruction Jeffrey Pirozzolo, and Superintendent Constance Evelyn, regarding student discipline.

Decision No. 16,688

(November 17, 2014)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Heather M. Cole, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the decisions of the Board of Education of the City School District of the City of Auburn (“board”), Assistant Principal Madalyn Stowell (“assistant principal”), Principal Brian Morgan (“principal”), Teacher Deborah Reilly, Assistant Superintendent for Instruction Jeffrey Pirozzolo (“assistant superintendent”), and Superintendent Constance Evelyn (“superintendent”) (collectively “respondents”), to suspend their son, J.H.  The appeal must be sustained in part.

During the 2012-2013 school year, J.H. was a junior in respondents’ district.  That school year, J.H. was disciplined for alleged misconduct occurring on several occasions, including October 16, 2012; January 15, 2013; and February 7, 2013.  In a separate appeal (Appeal of J.H. and T.H., 54 Ed Dept Rep, Decision No. 16,687), petitioners challenged certain disciplinary action resulting from J.H.’s subsequent alleged misconduct in March 2013.  While petitioners appeared to challenge, as part of that appeal, respondents’ conduct in regard to the October 2012, January 2013, and February 2013 disciplinary actions, petitioners’ claims relating to such actions were dismissed in that appeal based upon petitioners’ failure to exhaust their administrative remedies because, at the time such appeal was commenced, the board was in the process of reviewing petitioners’ administrative appeals (see Appeal of J.H. and T.H., 54 Ed Dept Rep, Decision No. 16,687).  In the instant appeal, which was taken after the board rendered its decision in those administrative appeals, petitioners challenge respondents’ actions with respect to J.H.’s October 2012, January 2013, and February 2013 alleged misconduct.

October 16, 2012 Discipline

According to the record, on October 16, 2012, one of J.H.’s teachers reported to the assistant principal that J.H. came to class laughing and joking and that he had bloodshot eyes.  J.H. then left his classroom to see his guidance counselor.  J.H. explained to his guidance counselor that he was extremely agitated.  The assistant principal, who was also present in the guidance counselor’s office, noticed that J.H. appeared agitated, used vulgar language, and used threatening language toward another student.  The assistant principal asked him to empty his pockets.  According to petitioners, J.H. emptied his pockets willingly, and was found to have cigarettes and a lighter, which the assistant principal confiscated.  

According to respondents, the assistant principal completed a disciplinary action form and imposed an in-school suspension on October 17 and 18, 2012.  The record indicates that the assistant principal spoke with petitioner T.H. twice on October 16, 2012, regarding the imposition of the in-school suspension and personally delivered to T.H. a copy of the disciplinary action form, at which time she also returned the confiscated cigarettes and lighter to T.H.

January 15, 2013 Discipline

According to respondents, on January 15, 2013, while J.H. was serving an in-school suspension, the assistant principal observed him outside of the in-school suspension room without permission or a hall pass.  The assistant principal reminded J.H. that he was required to have a hall pass in order to be somewhere other than his schedule indicated.  J.H. responded, in sum and substance, that he “can do whatever I want.” 

The assistant principal completed a disciplinary action form and, by letter dated January 15, 2013, the principal imposed a three-day, out-of-school suspension, beginning on January 16, 2013.  The letter, which the principal hand-delivered to petitioner T.H. on January 15, 2013, advised petitioners of their right to an informal conference prior to the imposition of the suspension and the right to question complaining witnesses, so long as they contacted the principal before 7:45 a.m. on January 16, 2013.   According to respondents, petitioner J.H. verbally declined the principal’s offer to hold an informal conference, and therefore, no such conference was held.

February 7, 2013 Discipline

On February 6, 2013, J.H. received a number of “cut slips” for missing classes that day.  On February 7, J.H. reported to the assistant principal’s office to discuss the cut slips.  Two school resource officers (“SROs”) were present.  J.H. entered the office wearing ear buds and listening to music.  According to respondents, J.H. refused to remove his ear buds despite multiple requests from the assistant principal.  The assistant principal contacted petitioner T.H. by telephone and placed her on speaker phone so she could request that J.H. remove his ear buds, but J.H. refused.  According to respondents, J.H. stared at the assistant principal in an intimidating manner, and then redirected his stare at one of the SROs.  The SROs escorted J.H. from the assistant principal’s office, at which point he used profane language. 

The assistant principal prepared a disciplinary action form and an SRO prepared a case report summary for the incident.  By letter dated February 7, 2013, the principal suspended J.H. for five days, beginning February 7, 2013.  The letter advised petitioners of their right to an informal conference prior to the imposition of the suspension and the right to question complaining witnesses, if they contacted the principal “before 7:45 a.m. on 2/7/2013.”  Above the deadline to contact the principal, the principal handwrote the words “suspension occurred after 9:00.  Parent may meet w/ Mr. Morgan before 12:00 pm.”  That day, the principal personally delivered the notice of suspension to petitioner T.H., who verbally declined the principal’s offer to hold an informal conference, and therefore, no informal conference was held.

By letter dated March 8, 2013, petitioners appealed, among other things, the discipline imposed on J.H. in October 2012, January 2013, and February 2013. 

By letter dated April 19, 2013, petitioners requested, among other things, that the superintendent allow an appeal to the board regarding the October 2012, January 2013, and February 2013 suspensions.  By letter dated May 1, 2013, the superintendent responded that, as stated in her March 15, 2013 letter, the request to appeal the October 2012, January 2013, and February 2013 suspensions was untimely.  According to respondents, the superintendent initially denied petitioners’ request for an appeal of those suspensions based upon a belief that the Education Law imposes a 30-day statute of limitations for appealing disciplinary matters to the board.  However, respondents later realized that the district’s code of conduct does not establish a timeframe for appealing out-of-school suspensions of five days or less.

By letter dated June 28, 2013, the board notified petitioners that it had decided to consider the appeals of the October 2012, January 2013, and February 2013 suspensions.  The board requested that petitioners provide the basis for those appeals within 30 days of receipt of the letter.  By letter dated August 5, 2013, petitioners submitted their written appeal to the board.

On December 16, 2013, the board reviewed the appeals, and by letter dated December 16, 2013, it upheld the disciplinary actions in all respects.  The board advised petitioners of their right to appeal to the Commissioner of Education pursuant to §310 of the Education Law within 30 days of receipt of its letter.  This appeal ensued.

Petitioners assert that they were denied informal meetings with respect to the October 2012, February 2013, and January 2013 suspensions.  In addition, petitioners assert that the assistant principal lacked authority to impose the October 2012 in-school suspension and that the district’s code of conduct lacks a specific procedure for in-school suspensions.  Petitioners request that the record of the October 2012, February 2013, and January 2013 suspensions be expunged from J.H.’s record; that the district’s administration “be required to have training in proper Disciplinary Procedure” and instructed “to provide a proper Notice of Suspension;” and that the district’s administrators be “removed from their duties.”

Respondents argue that the appeal should be dismissed for lack of proper service and for failure to state a claim upon which relief may be granted.  With respect to petitioners’ request for the removal of individual respondents, respondents also assert that the petition fails to include the notice of removal required by 8 NYCRR §277.1.  Respondents assert that the decisions to suspend J.H. in October 2012, February 2013, and January 2013 were based upon competent and substantial evidence; and that the penalties reflect a progressive model of discipline and were proportionate to the misconduct.  Respondents claim that the Commissioner is without jurisdiction to award certain other relief requested by petitioners. 

I must first address the procedural issues.  Respondents ask that I reject those portions of petitioners’ reply that exceed the permissible scope of a reply.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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. 

I note that, attached to the reply and incorporated therein by reference, is an affidavit from petitioners’ daughter, J.H., on the issue of lack of proper service, which was raised in respondents’ answer.  The affidavit does not raise new issues or introduce new exhibits; rather, its scope is limited to respondents’ affirmative defense of lack of proper service and attempts to explain the alleged deficiencies in service, since, according to petitioners, their daughter acted as process server.  Therefore, I have considered the affidavit as part of petitioners’ reply.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  According to the record, J.H. served the October 2012, January 2013, and February 2013, suspensions.  Therefore, the appeal is moot, except to the extent petitioners seek expungement of J.H.’s record (Appeal of E.B. and F.B., 53 Ed Dept Rep, Decision No. 16,545; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666). 

Respondents assert that the petition should be dismissed for lack of proper service on each named respondent.  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 Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Pleadings may be served by any person not a party to the appeal over the age of 18 years (8 NYCRR §275.8[a]). Respondents maintain that petitioners failed to personally serve the individual respondents and an individual authorized to accept service on behalf of the district in accordance with §275.8(a), and in any event, the petition was served by a party to the appeal. 

Petitioners submit six affidavits of service, indicating that copies of the petition were delivered to the district treasurer on behalf of each of the five individual respondents and respondent board.  Each affidavit of service is signed and notarized twice: first by the district treasurer, and underneath the signature line, by petitioners’ daughter.  Respondents confirm that the district treasurer was served on behalf of all six respondents.  Together with their answer, respondents submit affidavits from two members of the board, the superintendent, and the superintendent’s secretary.  The affidavits from the board members and the superintendent indicate that the only individuals in the district authorized to accept service of process on behalf of the district are members of the board, the district clerk, and the superintendent.  Respondents assert that the district treasurer is not authorized by the district to accept service on behalf of the district.

The parties do not dispute that, on January 17, 2014, petitioner J.H. and his daughter entered the district office to serve the petition.  According to petitioners, the superintendent’s secretary “was asked if she was able to accept such service for the persons listed in the appeal” and “[s]he answered that she was not.”  However, the secretary asked the treasurer whether the treasurer “could receive service for the individuals named on the Petition” and the treasurer “stated yes and signed for seven copies of paperwork.”  According to petitioners, neither the secretary nor the treasurer advised that the treasurer was not authorized to accept service.  Respondents have not provided an affidavit from the treasurer indicating that she did not accept service on behalf of the individual respondents and respondent board.  Moreover, the affidavit from the superintendent’s secretary confirms that she “asked that [the treasurer] sign” seven affidavits of service.  On these facts, I find that the district treasurer accepted service of the petition and represented that she was authorized to do so.  The burden is on respondents to establish their affirmative defense (see e.g. Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  On this record, petitioners’ evidence that respondents’ employees affirmatively represented to petitioner J.H. and his daughter that the treasurer was authorized to accept service on behalf of respondent board and the individual respondents is sufficient to overcome respondents’ conclusory assertion that the treasurer was not so authorized (see Appeal of a Student with a Disability, 41 Ed Dept Rep 52, Decision No. 14,613; Appeal of B.B., 38 id. 666, Decision No. 14,113).  

Respondents also assert that the appeal must be dismissed for lack of proper service because petitioner J.H. – not his daughter – served the petition.  Section 275.8(a) of the Commissioner’s regulations requires that a petition be served by someone who is over 18 and not a party to the appeal (see Application of Stephenson, 51 Ed Dept Rep, Decision No. 16,330; Appeal of Hughes, 48 id. 299, Decision No. 15,865).  Respondents contend that petitioner J.H., a party to the proceeding, physically transmitted copies of the petition by removing them from his briefcase and placing them on a counter in the superintendent’s office.  The district secretary’s affidavit indicates that, after placing the copies of the petition on the counter in front of her, petitioner J.H. advised that the petition needed to be served on the district.  While the secretary states that the treasurer initially signed the affidavits of service, she also states that “[l]ater that same day, in the afternoon, [petitioner J.H. and his daughter] returned to the Superintendent’s Office” and petitioner J.H. “stated that [his daughter], and not [the treasurer], needed to sign the Affidavits of Service.”  According to the secretary’s affidavit, “[a]lthough [petitioners’ daughter] signed the Affidavits of Service which indicate that she personally served the Petition[s] on [the treasurer], [petitioners’ daughter] did not, in fact, serve the Petitions.”  A photograph attached to the secretary’s affidavit depicts petitioner J.H. pulling the documents out of his briefcase while his daughter stood behind him talking on her cell phone.

As part of their reply, petitioners submit an affidavit from their daughter stating that she personally served the petitions and that she was “accompanied that day” by petitioner J.H., who was there to answer her questions about procedure.  According to petitioners, while petitioner J.H. did accompany their daughter as she served the petition, she was the one who “carried these documents into the district office and served those documents.”  As noted above, respondents have the burden of establishing their affirmative defenses (see Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  On this record, I am unable to conclude that respondents have carried their burden of establishing that petitioner – rather than his daughter - personally served the petition in this appeal.  Consequently, I will not dismiss the appeal for lack of proper service.

Turning to the merits, petitioners assert that, with respect to the October 2012 in-school suspension, the district’s code of conduct lacks a specific procedure for in-school suspensions, they were denied an informal meeting, and the assistant principal lacked authority to impose such suspension.  I find no merit to petitioners’ contention that the assistant principal lacked the authority to impose an in-school suspension.  As discussed below, in-school suspensions are not governed by Education Law §3214.  While Education Law §3214 prohibits an assistant principal from imposing an out-of-school suspension, it does not prohibit an assistant principal from imposing an in-school suspension (Appeal of M.C., 43 Ed Dept Rep 276, Decision No. 14,993).

Moreover, in-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).

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).  The record indicates that the assistant principal spoke with petitioner T.H. twice on October 16 regarding the imposition of the in-school suspension on October 17 and 18, and that she personally delivered to T.H. a copy of the disciplinary action form.  On this record, I find that petitioners were afforded sufficient due process and their claims with respect to the October 2012 in-school suspension must therefore be dismissed.

With respect to the January 2013 and February 2013 short-term suspensions, petitioners assert that the notices of suspension were defective and that they were denied informal meetings.  In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]).  Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

Regarding the January 2013 suspension, by letter dated January 15, 2013, the principal imposed a three-day, out-of-school suspension, beginning on January 16, 2013.  The letter, which the principal hand-delivered to petitioner T.H. on January 15, 2013, advised petitioners of their right to an informal conference prior to the imposition of the suspension and the right to question complaining witnesses, so long as they contacted the principal before 7:45 a.m. on January 16, 2013.

However, petitioners assert that they were asked to pick J.H. up “early” from school on January 15 – the date on which the alleged misconduct occurred and the date on which the principal handed petitioner T.H. the notice of suspension.  Under these circumstances, petitioners claim, J.H.’s suspension began on January 15, 2013 and respondents failed to provide them with notice and an opportunity for an informal conference with the principal prior to the start of the suspension.  While respondents contend that no discipline was imposed on J.H. on January 15, 2013 and that petitioner T.H. verbally declined an informal meeting, the record does contain evidence, including the board’s December 16, 2013 determination letter, that the assistant principal called petitioner T.H. on January 15 and asked her to pick J.H. up from school that day.  I note that the suspension letter did not assert, nor does the record contain any indication that J.H.’s presence in school posed a continuing danger to students or an ongoing threat of disruption to the academic process.  Accordingly, under these circumstances, I cannot conclude that respondent provided timely notice and an opportunity to question complaining witnesses prior to the commencement of the January 2013 short-term suspension, which must therefore be expunged from J.H.’s record (Appeal of E.B. and F.B., 53 Ed Dept Rep, Decision No. 16,545; Appeal of T.T. and K.T., 52 id., Decision No. 16,386; Appeal of R.F. and D.F., 52 id., Decision No. 16,369).

With respect to the February 2013 suspension, by letter dated February 7, 2013, the principal suspended J.H. for five days, beginning February 7, 2013.  The letter advised petitioners of their right to an informal conference prior to the imposition of the suspension and the right to question complaining witnesses, if they contacted the principal “before 7:45am on 2/7/2013.”  Above the deadline to contact the principal, the principal handwrote the words “suspension occurred after 9:00.  Parent may meet w/ [the principal] before 12:00 pm.”  Like the January 15 letter, the February 7 letter does not assert, nor does the record contain any indication that J.H.’s presence in school posed a continuing danger to students or an ongoing threat of disruption to the academic process.  While respondents generally deny petitioners’ assertions and assert that petitioners verbally declined the opportunity for an informal meeting upon delivery of the written notice, the record contains no evidence that petitioners received prior written notice of the suspension and their right to an informal conference with the principal prior to the commencement of the suspension “after 9:00.”  Accordingly, the February 2013 short-term suspension must also be expunged from J.H.’s record (Appeal of E.B. and F.B., 53 Ed Dept Rep, Decision No. 16,545; Appeal of T.T. and K.T., 52 id., Decision No. 16,386; Appeal of R.F. and D.F., 52 id., Decision No. 16,369).

Petitioners request that the district’s administration “be required to have training in proper Disciplinary Procedure” and instructed “to provide a proper Notice of Suspension.”  Petitioners have failed to establish that they have a legal right to such relief and such claims must be dismissed.

Finally, petitioners’ request that the district’s administrators be “removed from their duties” must also be dismissed, as an appeal pursuant to §310 of the Education Law is not the proper forum to seek removal pursuant to Education Law §306.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents’ suspension of J.H. from January 16 to 18, 2013 and from February 7 to 13, 2013 be expunged from his record.

END OF FILE