Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Hornell regarding student discipline.

Decision No. 17,302

(January 4, 2018)

Hodgson Russ, LLP, attorneys for respondent, Karl W. Kristoff and Emina Poricanin, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Hornell (“respondent”) to impose a suspension from extracurricular activities on her son (“the student”).  The appeal must be dismissed.

The record reflects that the student attended school in respondent’s district and participated in drama club during the 2014-2015 school year.  The record further reflects that petitioner and the student signed a participation agreement on September 23, 2014, whereby they agreed that the student would abide by the “training rules” outlined in respondent’s policy 5305, also known as the athletic and extracurricular handbook (“handbook”).  In her reply, petitioner admits that the student had previously received a copy of the handbook when he participated in an athletic activity and does not deny respondent’s allegations that the student signed a participation agreement in the 2013-2014 school year, and that the handbook had not changed between the 2013-2014 and 2014-2015 school years.  

On September 25, 2014, the district’s assistant principal and athletic director (“athletic director”) sent a letter to petitioner indicating that on September 20, 2014, the student violated training rule 2a, which requires students to “leave immediately” if they are “present at any time where underage consumption of alcohol is occurring.”  The athletic director characterized this as an “out-of-season” violation.  According to the handbook, the penalty for a student’s first out-of-season violation of a training rule is a warning and the mailing of a certified letter to the student’s parents.  Petitioner did not seek to appeal the athletic director’s determination.

On March 14, 2015, the record reflects that the student attended a cast party at another student’s house.  Petitioner asserts on appeal that the student and a friend “took a puff of a cigar,” and that this is “[s]upposedly a theatrical tradition.”  Respondent asserts that the student admitted to smoking tobacco, which is a violation of the training rules, and the athletic director attests in an affidavit that he suspected that the student may have been smoking marijuana.

On March 16, 2015, petitioner and the student met with the athletic director to discuss the incident.  The athletic director stated that the student’s actions violated the training rules and that, because it was his second out-of-season violation, the student would be suspended from extracurricular activities for 45 days.

As was her right as outlined in the handbook, petitioner appealed the athletic director’s determination to respondent’s athletic council, which in this case consisted of four faculty members, including a school counselor, the junior high school principal and the senior high school principal.[1]  On March 20, 2015, petitioner spoke with a member of the athletic council, who informed her that the council had “modified” the student’s suspension such that the student would not be permitted to “participate in [a] choir trip or the drama production,” but would be allowed to “participate in any other extra-curricular activities.”

On March 23, 2015, petitioner met with the superintendent to discuss the athletic council’s determination.  In a letter dated March 23, 2015, the superintendent indicated that he “concur[red]” with the athletic council’s ruling on March 19, 2015.  The superintendent further stated that the student’s activity on March 14, 2015 was an “in-season violation,” not a second out-of-season violation because drama club, to which the student belonged, was a “yearlong commitment.”

In a letter dated April 7, 2015, petitioner indicated that she “respectfully disagree[d]” with the superintendent’s conclusion that drama club was a yearlong activity.  She further indicated that she was pursuing an appeal to the State Education Department, and “still had not received any formal decision letter from the school with the exception of the letter you sent after your investigation.”

In a letter dated April 14, 2015, the principal of respondent’s junior high school, acting as appeal hearing administrator and on behalf of the athletic council, conveyed the athletic council’s written decision regarding the student’s violation of the training rules on March 14, 2015. The letter indicated that because this was the student’s second in-season violation, he would be suspended from extracurricular activities for 45 days, commencing on March 19, 2015.  As communicated to petitioner in the March 20, 2015 phone call, the letter indicated that the student would not be allowed to participate in an upcoming choir trip or an upcoming drama production, but that he could “participate in all other extracurricular activities.”  This appeal ensued.

Petitioner argues that the September 2014 and May 2015 extracurricular suspensions were marred by “procedural inconsistencies.”  With respect to the September 2014 incident, petitioner contends that the student did not engage in the charged conduct and that respondent failed to provide the student with the 2014-2015 handbook prior to the September 2014 disciplinary incident.  With respect to the March 2015 incident, petitioner argues that respondent failed to provide “written notification from the Vice Principal and the Head of the [Athletic] Council.”  Petitioner further contends that the superintendent erred by considering drama club a yearlong activity.  Petitioner requests that respondent expunge the September 2014 incident from the student’s record and reduce the penalty for the March 2015 incident to “a warning letter.”  Petitioner also requests the “full restoration of extra-curricular activities” and that respondent review the handbook “to ensure fair and equitable procedures and enforcement of policies.”

Respondent contends that the appeal must be dismissed as untimely.  Respondent further contends that the appeal is moot insofar as the student has already served his suspension.  Respondent additionally argues that it acted reasonably and that petitioner has failed to meet her burden of proving a clear legal right to the requested relief.

Petitioner’s challenge to the September 2014 disciplinary incident must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner served the instant petition approximately seven months after the September 2014 incident and does not set forth good cause in her petition for such delay (8 NYCRR §275.16).  Therefore, petitioner’s challenge to this incident is untimely and must be dismissed.

With respect to the timeliness of petitioner’s challenge to the March 2015 disciplinary incident, petitioner admits that the junior high school principal informed her of the athletic council’s determination on March 20, 2015.  Therefore, assuming the athletic council’s determination was the district’s final determination, petitioner was required to serve the petition on or before April 20, 2015. 

After receiving the athletic council’s determination, petitioner subsequently met with the superintendent on March 23, 2015, who issued a written decision in which he “concur[red] that the ruling made by the Review Counsel [sic] on March 19, 2015 was correct.”  The letter characterized the meeting as a “[r]uling clarification.”  Thereafter, on April 15, 2015, the principal, on behalf of the athletic council, sent petitioner a letter setting forth the written decision of the athletic council.

On April 17, 2015, petitioner attempted to serve the instant petition on respondent’s district clerk.  However, it appears from the record that the version of the petition which petitioner served was missing every other page.[2]  In a letter dated April 20, 2015 – i.e., 30 days from the athletic council’s determination – respondent’s district clerk returned the papers which petitioner had served on April 17, 2015, indicating that every other page was missing.  The district clerk further asserted that:

The [d]istrict does not consider the service of these incomplete papers to be proper for response as required by the Regulations of the Commissioner of Education within the time limits specified therein.

According to the record, petitioner received this letter, sent by regular mail, on April 23, 2015.  On the following day, petitioner served a corrected version of the petition on the district clerk.

The burden is on respondent to establish any affirmative defenses (see e.g. Appeal of Eschmann, 55 Ed Dept Rep, Decision No. 16,853; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).   On this record, I find that respondent has failed to do so and I decline to dismiss the appeal as untimely.  It is unclear whether petitioner was entitled to appeal the athletic council’s March 19, 2015 determination to the superintendent and, relatedly, whether the superintendent’s March 23, 2015 letter was intended as a determination on appeal from the athletic council’s determination or merely a “clarification.”  The phrasing of the letter suggests that the superintendent treated petitioner’s “request for clarification” as an appeal, as the superintendent stated that he conducted a “careful review of all documentation and the facts” and specifically addressed petitioner’s argument as to whether the March 2015 disciplinary incident was a second out-of-season offense.  Under such circumstances, petitioner was justified in assuming that the superintendent’s letter represented respondent’s final decision.   Allowing the usual five days for mailing, an appeal from the superintendent’s determination would be timely if brought by April 29, 2015.  Because petitioner served the corrected petition on April 24, 2015, within the 30-day period, I find that respondent has not met its burden of proving that the appeal is untimely with respect to the second suspension from extracurricular activities.

Even if respondent had established that the appeal was untimely, on this record I would excuse the delay.   The record demonstrates that petitioner timely served a partial copy of the petition within the 30-day timeline measured from the March 20, 2015, and that respondent informed petitioner of this incomplete petition three days later in a letter dated April 20, 2015, the last day upon which service would otherwise be proper. The error involved missing every other page, which was likely a copying error, and petitioner immediately served a corrected petition upon learning of the problem.  Respondent has not established that it was prejudiced by this brief delay. Finally, despite respondent’s contention that the athletic council issued a final decision regarding petitioner’s appeal on March 19, 2015, the junior high school principal inexplicably mailed the athletic council’s written determination to petitioner in a letter dated April 14, 2015.  Petitioner’s confusion about when the time to appeal began to run is understandable given respondent’s action in rendering a written decision several weeks after the determination was made, and I would excuse any attendant delay by petitioner.

To the extent petitioner challenges her son’s suspension from extracurricular activities for 45 days, commencing on March 19, 2015, the appeal must be dismissed as moot.  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).  Here, the only relief petitioner seeks in connection with the March 2015 incident is that it “be reduced from 45 days suspension to a warning letter” and that the student receive “full restoration of extra-curricular activities.”  As respondent observes, the student has served the 45-day suspension.  Although petitioner also seeks to reduce the March 2015 suspension into “a warning letter,” petitioner does not request expungement of the March 2015 incident from the student’s record.  Therefore, the appeal is moot and must be dismissed (see e.g. Appeal of T.W., 54 Ed Dept Rep, Decision No. 16,728).

However, even if the appeal were not subject to dismissal as discussed above, it would be dismissed on the merits.  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).

Here, petitioner has not met her burden of proving a clear legal right to her requested relief.  The record reflects that the student signed a participation agreement on September 23, 2014 indicating his receipt of, and agreement to be bound by, the handbook for the 2014-2015

school year.[3]  The training rules contained therein prohibit the “possession or use of tobacco products” as well as the “possession, sale ... of any drug or controlled substance, including marijuana.”  Thus, it is not necessary to resolve the parties’ dispute as to whether the student smoked a cigar or marijuana, as either activity would constitute a violation of the training rules.  Moreover, the student admitted to the assistant principal that he smoked a cigar, and this admission constitutes sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).

It is also unnecessary to resolve whether drama club is a yearlong activity because, according to the handbook, the penalty would be the same whether the March 2015 incident was considered an in-season or out-of-season penalty.  The parties do not dispute that the September 2014 incident constituted the student’s first out-of-season violation.  Thus, the subsequent March 2015 incident was either the student’s second out-of-season violation or his first in-season violation.  Because the handbook imposes the same penalty for a second out-of-season violation and a first in-season violation (i.e., a 45-day suspension from extracurricular activities), respondent’s characterization of the March 2015 incident is irrelevant under the circumstances.

Nonetheless, petitioner is correct that respondent’s handbook, which was initially drafted to address suspensions from athletic participation, does not clearly address the procedures for suspensions from other extracurricular activities, including appeals from such suspensions.  To avoid unnecessary future disputes, I urge respondent to review the handbook and make any changes needed to clarify the procedures for suspensions from extracurricular activities other than athletics.

THE APPEAL IS DISMISSED.