Appeal of L.Z. and N.Z., on behalf of their son M.Z., against the Board of Education of the Hewlett-Woodmere Union Free School District regarding student discipline.

Decision No. 16,982

(October 24, 2016)

Eisner & Associates, P.C., attorneys for petitioners, Benjamin N. Dictor, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Cheryl R. Monticciolo, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) to suspend their son, M.Z. (“the student”).  The appeal must be dismissed.

During the 2014-2015 school year, the student attended ninth grade at respondent’s high school.  On February 12, 2015, the district’s social worker alerted administrative staff to allegations of student misconduct; specifically, that a number of male students were sharing photos and videos that included images of middle school and high school girls who were semi or fully nude.  The ensuing investigation ultimately implicated nine male students at the school, including M.Z.  The record indicates that, due to the “sensitive nature” of the investigation and its possible “widespread impact,” the district’s deputy superintendent (“deputy”) was asked by the superintendent to provide oversight of the building principal’s investigation for the building.  On the day the investigation began, February 12, 2015, the student was removed from class and questioned by the assistant principal in the presence of the school social worker regarding the investigation.  The parties disagree whether the student initially admitted or denied possessing nude female photos on his phone.  Regardless, the assistant principal accessed the student’s phone during this meeting and found nude photos of at least six teenage girls, one of whom attended eighth grade in respondent’s district, on the student’s phone.  The student admitted to possession and transmission of at least one of the photos to other male students. 

Petitioners claim that after the student admitted there were nude photos on his phone, the assistant principal then left the room, leaving the student alone for two hours until he returned and confiscated the student’s cell phone.[1]  

The district was then closed the following week for winter recess.  During that time, the building principal suffered a serious illness and was not able to return to work. The superintendent thereafter assigned the deputy superintendent (“deputy”) to act as the building principal for the duration of the principal’s absence. 

By letter dated February 23, 2015, the deputy informed petitioners that he was considering suspending the student for “up to 5 days” for violating the district’s code of conduct as well as the district’s sexual harassment, bullying, and respect and empathy policies.  The letter informed petitioners of their right to an informal conference where they could confront complaining witnesses. 

The letter further stated that if no response was received from petitioners, the student’s suspension would commence on March 2, 2015.  The student’s mother emailed the deputy on February 24, 2015 requesting an informal conference. 

The informal conference was held on February 26, 2015 with the student, petitioners, the assistant principal and the deputy.  At the conference, there was a dispute over whether the student initially denied having the pictures on his phone and the deputy and assistant principal thereafter withdrew that portion of the charges.  By letter dated February 27, 2015, the deputy suspended the student for five days from March 2, 2015 to March 6, 2015.  The letter also stated that the student would attend a mandatory after-school training conference to be scheduled at a later date.  The letter stated that the student would receive academic instruction during the time of his suspension and that the student was not permitted on school grounds during the five-day suspension. 

Petitioners appealed the decision to the superintendent who upheld the deputy’s determination in a decision dated March 20, 2015.  Petitioners then appealed to respondent, which upheld the suspension by letter dated April 28, 2015.  This appeal ensued. 

Petitioners contend that the district violated its own disciplinary policy regarding the procedures to be followed for alleged sexual harassment.  Specifically, petitioners allege that the district failed to notify the student or petitioners in writing of the outcome of its sexual harassment investigation, thereby denying the student the right to appeal those findings to the superintendent.  Petitioners further allege that the district attempted to impose a penalty prior to producing the findings of its investigation.  Petitioners also assert that they were not advised of their right to counsel pursuant to respondent’s sexual harassment policy.  Petitioners additionally allege that the district did not produce any witnesses who alleged harassment or bullying, thus denying them and the student the right to confront complaining witnesses.  Finally, petitioners argue that the deputy superintendent lacked the authority to suspend the student under the Education Law.  Petitioners seek reversal of the student’s suspension and an order expunging the suspension from the student’s record.

Respondent contends that the student was afforded all the due process required under the state law and the district’s policies.  Specifically, respondent argues that petitioners were allowed to confront and question the complaining witness, namely the assistant principal.  Respondent also contends that the deputy possessed the requisite statutory authority to suspend the student since he was designated by the superintendent as “acting principal” while the principal was on leave. 

I first must address the procedural issues.  Petitioners filed a reply to respondent’s answer, including an additional exhibit.  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).  Here, no affirmative defenses were asserted nor was new material introduced with the answer.  Therefore, I have not considered the 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).  The petition was not filed until May 26, 2015 - after the student’s five-day suspension at issue in this appeal had ended.  To the extent that the suspension has been served, petitioners’ claims regarding the appropriateness of the penalty are moot.  However, to the extent that petitioners seek expungement of the suspension from the student’s record, such claim is not moot (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

Turning to the merits of the appeal, petitioners first argue that the student was denied his due process rights.  Specifically, petitioners claim that they and the student were denied the opportunity to confront complaining witnesses.  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]). 

In this case, the assistant principal himself was the complaining witness, as he questioned the student directly about his possession of pictures on his cell phone and looked at the student’s cell phone, observing the pictures and determining that they had been received from and sent to other students (see Appeal of E.S., 50 Ed Dept Rep, Decision No. 16,105; Appeal of C.C. and R.C., 47 id. 295, Decision No. 15,701; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  Thus, petitioners were provided an opportunity to meet with the complaining witness against M.Z. before a penalty was imposed.

Next, petitioners allege that although the district charged the student with sexual harassment, it failed to follow its own internal procedures for such claims.  Specifically, petitioners claim that, because the district did not notify them in writing of the outcome of its investigation, they were denied the right to appeal such findings to the superintendent.  Petitioners also claim that respondent impermissibly proposed a suspension prior to such investigation.  While it is true that some of the district’s procedures regarding sexual harassment were not followed, a review of the procedures shows that they are only triggered in instances where a victim has lodged a complaint with the district.  That is not the case here; instead, the assistant principal directly observed the inappropriate pictures on the student’s phone and served as the complaining witness.  Therefore, the procedures under the sexual harassment policy were not triggered. 

Moreover, due process was satisfied as petitioners received letters both before and after the informal conference indicating that the student “admitted to possessing and distributing inappropriate photos” and that the charges against the student included engaging in conduct that “endangered the safety, physical or mental health or welfare of oneself or others.”  Petitioners and the student were also given the opportunity to confront the complaining witness, and were told in writing of the decision regarding the student’s suspension.  Petitioners were then given the opportunity to appeal the decision to the superintendent, an opportunity of which they availed themselves, and then to respondent.  Therefore, the student and petitioners received all the due process required by law for a short-term suspension. 

As to petitioners’ claim that petitioners and the student were not apprised of their right to representation by counsel pursuant to the sexual harassment policy, I have already concluded that such procedures did not apply and, regardless, petitioners actually obtained counsel by the time of their appeal to respondent. 

Lastly, petitioners argue that the deputy lacked the authority to suspend the student and that the superintendent lacked the authority to delegate her authority to suspend.  Education Law §3214(3)(a) authorizes a board of education, board of trustees, sole trustee, superintendent of schools, district superintendent, or principal of a school to suspend a “pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.”  The statute does not authorize an assistant principal to suspend students, nor does it authorize the principal to delegate his authority to suspend (Appeal of C.R., 45 Ed Dept Rep 303, Decision No. 15,330; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883; Appeal of E.R., 40 id. 599, Decision No. 14,565).  In this case, the record indicates that the building principal fell ill during winter break, after the student had initially been questioned by the assistant principal regarding the pictures, but prior to the February 23, 2015 letter, and prior to the informal conference.  Since the principal was on medical leave and it was unclear when he would return, the superintendent designated the deputy to act in his stead in all respects, including suspensions.  This was not a case where the superintendent delegated to the deputy the authority to suspend; rather, the superintendent assigned the deputy to act as building principal in the principal’s absence.  I find that here, the deputy was properly acting as building principal in the principal’s absence and, therefore, possessed the authority to suspend the student (see Appeal of Oliver, 39 Ed Dept Rep 817, Decision No. 14,392). 

Based on the above, I find no basis upon which to expunge the student’s suspension from his record.

THE APPEAL IS DISMISSED.

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