Appeal of T.W., on behalf of her son A.S., from action of the Board of Education of the Hempstead Union Free School District regarding student discipline.

Decision No. 16,728

(March 30, 2015)

Guercio & Guercio, LLP, attorneys for the respondent, John P. Sheahan, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the decision of the Board of Education of the Hempstead Union Free School District (“respondent”) to suspend her son, A.S.  The appeal must be dismissed.

On March 19, 2012, A.S. was involved in an altercation at Hempstead High School.  According to respondent, A.S. was present in the school gymnasium without authorization and refused several staff directives to leave the gymnasium.  When a school security officer touched A.S.’s arm in an attempt to escort him out of the gymnasium, A.S. allegedly responded using expletives and threatened the school security officer.

By letter dated March 20, 2012, the principal notified petitioner that her son would be suspended for five school days, from March 20 through March 26.  The letter advised petitioner of A.S.’s due process rights prior to the suspension and that a referral would be made to the superintendent for possible further disciplinary action. 

By letter dated March 22, 2012, petitioner was informed that a superintendent’s hearing was scheduled for March 28, 2012.  After the hearing, the hearing officer issued his recommendation to the superintendent, finding A.S. guilty of the charges.  The hearing officer recommended that A.S. be suspended through June 30, 2012 and that, during the period of suspension, A.S. receive his education at respondent’s HYPE Academy, an alternative school.  By letter dated March 28, 2012, the superintendent notified petitioner that she had adopted the hearing officer’s recommendation.  Petitioner appealed the superintendent’s decision to respondent via certified mail on April 3, 2012.  Prior to receiving a decision from respondent, petitioner initiated this appeal.  Petitioner’s request for interim relief was denied.

Petitioner claims that she did not receive written notice of A.S.’s short-term suspension prior to the start of the suspension.  With respect to the long-term suspension, she challenges the decision of the hearing officer, alleging that he was not impartial because he did not take into account that A.S. was defending himself from what she claims was “unnecessary physical force” used by the school security officer.  She also claims that A.S. did not receive alternate education prior to going to HYPE Academy and she seeks such services to compensate A.S. for the alternate education she alleges was not provided during his short-term suspension.  Petitioner further alleges that the alternate education services provided during the long-term suspension were insufficient.  Additionally, petitioner seeks review of A.S.’s grades from the first, second and third quarters of the school year.  She alleges that she had not yet received A.S.’s third quarter grades and that few of his teachers follow the district’s grading policy.

Respondent argues that the appeal must be dismissed, claiming that the district complied with all applicable laws and regulations.  Respondent contends that the appeal is moot, that petitioner has failed to meet her burden of proof, and that petitioner has failed to exhaust her administrative remedies.  Respondent further argues that compensatory education services are only available to students with disabilities and there is no evidence that A.S. is a student with a disability. 

First, I must address a procedural matter.  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.

Petitioner’s appeal of the long-term suspension must be dismissed.  In the case of a suspension in excess of five days, Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination.  Accordingly, the decision of a superintendent to suspend a student following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner (Appeal of R.A., 48 Ed Dept Rep 426, Decision No. 15,903; Appeal of D.H., 47 id. 77, Decision No. 15,631).  Although petitioner appealed to respondent, she did not wait for respondent’s decision prior to commencing this proceeding.  Therefore, the claim is dismissed for failure to exhaust her administrative remedies (Appeal of Christopher L., 39 Ed Dept Rep 628, Decision No. 14,333; Appeal of L.K., 35 id. 129, Decision No. 13,488).

Moreover, petitioner’s claims regarding both the short-term and long-term suspensions must be dismissed as moot.  Petitioner’s request for interim relief was denied and A.S. served both his short-term and long-term suspensions.  Petitioner does not seek expungement of A.S.'s record.  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).  Accordingly, petitioner’s claims regarding her son’s suspension are moot and must, therefore, be dismissed (Appeal of D.E., 53 Ed Dept Rep, Decision No. 16,571; Appeal of a Student with a Disability, 52 id., Decision No. 16,375; Appeal of C.B. and B.R., 50 id. 433, Decision No. 16,192).  Similarly, the appeal is also moot to the extent petitioner seeks relief on her claims regarding alternate instruction (Appeal of C.M., 50 Ed Dept Rep, Decision No. 16,142; Appeal of D.C., 41 id. 277, Decision No. 14,684).  I also note that, generally, compensatory education services are available only to students classified as having a disability and petitioner submits no evidence that A.S. has been so classified (Appeal of V.C., 45 Ed Dept Rep 571, Decision No. 15,419). 

While the appeal is not moot with respect to petitioner’s claims regarding A.S.’s grades during the school year, those claims must also be dismissed.  Petitioner asserts that she had not received A.S.’s third quarter grades but alleges that few of A.S.’s teachers follow the district’s grading system and that the superintendent does not require teachers to substantiate grades with documentation.  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).  Accordingly, as previous Commissioner’s decisions have noted, when a student challenges a final grade, he or she bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Goloski, 34 Ed Dept Rep 565, Decision No. 13,410).  In this case, other than her conclusory assertions, petitioner fails to allege or to submit any evidence indicating that A.S.’s grades were erroneous; in fact, petitioner had not yet received his third quarter grades.  On this record, petitioner has not carried her burden of establishing the facts upon which she seeks relief and her claim must, therefore, be dismissed.  To the extent that petitioner requests that I review A.S.’s quarterly grades, I note that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). 

While the appeal must be dismissed for the reasons set forth above, I am compelled to comment on petitioner’s claim that she did not receive written notice of A.S.’s short-term suspension until after the suspension began.  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 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).

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]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (see e.g. Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).  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).

In its verified answer, respondent admits, upon information and belief, petitioner’s assertion that she received verbal notice of the short-term suspension from the principal, and denies knowledge or information sufficient to form a belief as to when petitioner “received written notice via mail.”  The record contains a copy of the notice, which is dated March 20 - the first day of A.S.’s short-term suspension - and indicates that it was transmitted “Via Hand Delivery & Overnight Mail” (emphasis in original).  However, petitioner asserts, and the record contains no evidence to the contrary, that she did not receive the written notice until March 22, after the commencement of the short-term suspension.  Accordingly, I remind respondent of its obligation to comply with all applicable laws and regulations in the future and urge respondent to review and revise its discipline policies and procedures to ensure such compliance.

THE APPEAL IS DISMISSED.

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