Appeal of a STUDENT WITH A DISABILITY from action of the Board of Education of the Greenburgh Eleven Union Free School District regarding student discipline.

Decision No. 17,182

(September 11, 2017)

Lawyers for Children, attorneys for petitioner, Hal Silverman, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Joseph P. Lilly, Esq., of counsel

ELIA, Commissioner.--Petitioner (“the student”) appeals the decision of the Board of Education of the Greenburgh Eleven Union Free School District (“respondent”) to impose discipline on him.  The appeal must be dismissed.

At all times relevant to this appeal, the student was an unemancipated thirteen-year-old minor who resided in a residential child care facility located within respondent’s district and was enrolled in respondent’s district.

On November 7, 2016, the student was suspended for five days for allegedly engaging in violent and disorderly conduct which violated respondent’s code of conduct.  The student’s suspension ran from November 8, 2016 through November 15, 2016.

A superintendent’s hearing convened on December 8, 2016.  The superintendent found the student guilty of the charged conduct but did not impose any additional penalty beyond the suspension already served by the student.  Counsel for petitioner appealed this suspension to respondent on December 22, 2016.  Respondent denied the appeal on February 17, 2017.  This appeal ensued.

Petitioner contends that the district failed to meet its burden to prove, by substantial and competent evidence, that he engaged in the charged conduct.  Petitioner further contends that his due process rights were violated because the superintendent was personally familiar with him and, thus, unable to render an impartial decision.  Petitioner requests dismissal of the charges and expungement of the suspension imposed by the superintendent from his record.

Respondent contends that the appeal should be dismissed for lack of standing.  Respondent further argues that the appeal is moot and untimely.  Respondent additionally submits that the evidence in the record supports its determination that the student engaged in the charged conduct.  Finally, respondent asserts that the superintendent was impartial and that he adjudicated petitioner’s claims in a fair manner.

First, I must address several procedural matters.  The parties have submitted applications to submit additional evidence pursuant to 8 NYCRR §276.5.  These requests relate to an audio recording of the superintendent’s hearing which respondent submitted with its answer.  Petitioner alleges in his reply that he had not previously received an audio recording of the superintendent’s hearing, and that this recording was incomplete.  Respondent applied to file a sur-reply pursuant to 8 NYCRR §276.5 to respond to this allegation, and petitioner applied to file a response to this sur-reply.  Because the audio recording submitted with the answer was new material to which petitioner was entitled to respond in a reply, I have accepted respondent’s sur-reply and petitioner’s response thereto (see 8 NYCRR §§275.3 and 275.14).

Respondent further objects to portions of petitioner’s reply and memorandum of law which contain new allegations.  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).  Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed petitioner’s reply and memorandum of law, 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 pleadings.

The appeal must be dismissed for lack of standing because petitioner is an unemancipated minor and the appeal has not been brought by a person in parental relation to the student.  While an emancipated minor may maintain an appeal pursuant to Education Law §310 (Appeal of Caban, 35 Ed Dept Rep 532, Decision No. 13,622), petitioner has neither alleged nor proven that he has emancipated minor status[1] and, thus, lacks standing to bring this appeal (see Appeal of L-M.L., 53 Ed Dept Rep, Decision No. 16,615).  Indeed, counsel for petitioner admits that petitioner has brought this appeal on his own behalf.  Thus, petitioner does not have standing to pursue the instant appeal.

The record further reveals that the Administration for Children’s Services (“ACS”)[2] had custody over the student as of March 20, 2017, when this appeal was initiated by service of the petition.  On May 5, 2017, I directed counsel for petitioner to submit “[i]nformation stating in whose custody [the student] was placed on March 20, 2017, and any orders reflecting such status.”  In a letter dated May 12, 2017, counsel for petitioner stated that the student was in the custody of ACS on March 20, 2017.  Therefore, under these circumstances, only the Commissioner of ACS would have standing to pursue a petition under Education Law §310 challenging the student’s suspension (see e.g. Appeal of Moon, 35 Ed Dept Rep 9, Decision No. 13,446).

Nevertheless, counsel for petitioner argues that it may represent petitioner in this appeal because it was appointed to represent him as a law guardian by order of the Family Court dated April 16, 2016.  A review of this order indicates that counsel was assigned to represent petitioner for the sole purpose of the foster care placement proceeding.  The Family Court Act provides for appointment of a law guardian for the child in various Family Court proceedings including proceedings under Articles 10 or 10-A, as cited in the aforementioned order (Family Court Act §249[a]).  However, such appointment is limited to the Family Court proceeding and does not extend to any other legal matters in which the child is, or may become, involved (see Family Court Act §241 [“minors who are the subject of family court proceedings or appeals in proceedings originating in the family court should be represented by counsel of their own choosing or by assigned counsel.”]).

In any event, after this appeal was filed, custody of the student was returned to the student’s parent.  The record contains an order of the Family Court dated April 6, 2017 which terminated the student’s voluntary placement and returned custody to the student’s parent with the consent of ACS and counsel for the student.  Therefore, the student’s parent now has a right to bring an appeal challenging petitioner’s suspension and setting forth the reasons as to why the appeal was not brought within 30 days from the making of the decision complained of (see 8 NYCRR §275.16).

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

THE APPEAL IS DISMISSED.

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