Appeal of J.H. and R.H., on behalf of their son Z.H., from action of the Board of Education of the Syosset Central School District regarding student discipline.

Decision No. 17,317

(February 2, 2018)

John J. McGrath, Esq., attorney for petitioners

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

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Syosset Central School District (“respondent”) to impose discipline on their son, Z.H. (“the student”).  The appeal must be dismissed.

According to the record, the student created a fictitious online persona on a social media application on or about January 24, 2015.  The student’s online persona purported to be a female and included a photograph of what respondent’s administrative assistant describes as “a scantily dressed girl.”  Using this persona, the student communicated with another student (“Student A”) over the course of approximately a week.  Through the online persona, the student promised to send Student A “dirty” pictures if Student A sent pictures of his genitalia.  Student A subsequently sent a picture of his genitalia to the student’s online persona through the social media application.  The student thereafter ceased communicating with Student A using the online persona.

On March 4, 2015, an administrative assistant at respondent’s high school received a telephone call from a high school counselor who reported that two students had reported a possible breach of respondent’s code of conduct to her.  The administrative assistant proceeded to interview the student and Student A, both of whom confirmed the events described above.  After the student explained his role in the incident, the administrative assistant asked the student to commit his account to writing.  After the student finished writing his account, the administrative assistant reviewed the writing and noticed that the student had omitted several significant details about “the types of pictures he asked for and had discussed with Student A.”  Thereafter, the administrative assistant asked the student to add those additional details.  The student complied with this request.

In a letter dated March 4, 2015, the administrative assistant informed petitioners that the building principal had suspended the student for five days beginning on March 5, 2015 based upon the incident described above.  The letter stated that the student violated the provision of respondent’s code of conduct regarding “[s]exting or sending or posting private or public threats....”  The record reflects that this letter was “overnight” mailed to petitioners, and petitioners assert that they received it on March 5, 2015.  The letter informed petitioners that they had a right to an “immediate informal conference” with the principal where they could question complaining witnesses.

Thereafter, the principal sent a “revised” letter dated March 6, 2015 reiterating the student’s short-term suspension.  This written notice referenced a different section of respondent’s code of conduct regarding harassment.  Respondent’s administrative assistant attests that the original written notice was “revised to reflect the most appropriate section of the Code of Conduct after further discussion with District administration.”

By separate letter also dated March 6, 2015, the superintendent informed petitioners that a long-term suspension hearing would be held on March 11, 2015.

The long-term suspension hearing, presided over by a hearing officer, convened as scheduled.  At the hearing, the student pled “no contest” to the charges against him on the condition that he be allowed to return to school on March 23, 2015.  The hearing officer issued a recommendation to the superintendent dated March 11, 2015 which recited the terms of this agreement and recommended its approval. 

In a letter dated March 11, 2015, the superintendent accepted the hearing officer’s recommendation, noting that “it was agreed upon by the district” that, in exchange for an admission of guilt via a plea of no contest, the student “would continue his suspension to and including March 23, 2015.”[1]

Contemporaneously with these events, the district investigated a complaint against the student pursuant to Title IX of the Education Amendments of 1972 (“Title IX”) concerning the conduct described above (see 20 U.S.C. §1681 et seq.).  Respondent’s Title IX coordinator conducted an investigation which included interviews with six district employees as well as Student A and his parents.  On March 23, 2015, the Title IX coordinator interviewed petitioners, the student and counsel for petitioners. 

In a written decision dated March 26, 2015, the Title IX coordinator indicated that, based on her investigation, the student had violated respondent’s policy entitled “Employee and Student Freedom from Sexual Harassment.”  The letter noted that the student had been “the subject of a disciplinary hearing” and that he had been “suspended until March 23, 2015.”  The Title IX coordinator “recommend[ed] that” the student “be provided with instruction to increase awareness of the potential implications of sexual harassment and electronic harassment.”  The letter stated that such instruction “will be provided at Syosset High School during [the student’s] free periods.”  This appeal ensued.

Petitioners raise challenges to both the student’s suspension and the Title IX coordinator’s written findings.  With respect to the short-term suspension, petitioners contend that the March 4, 2015 written notice was sent by overnight mail, and that it did not reach petitioners until March 5, 2015, the first day of the student’s suspension.   Petitioners further complain that, in the revised written notice dated March 6, 2015, respondent altered the code of conduct provision which the student was charged with violating.  As for the Title IX coordinator’s findings, petitioners argue that the Title IX coordinator’s written decision contains factual inconsistencies and does not otherwise support a conclusion that the student violated respondent’s code of conduct.  Petitioners further contend that the Title IX coordinator imposed “disciplinary action” by requiring him to “watch videos on sexual harassment,” which constitutes double jeopardy.  Petitioners also contend that the Title IX coordinator “retroactively imposed the 12 day suspension” which the student had already completed.  Petitioners additionally assert that respondent commenced a Title IX investigation later than required by its own internal policy and that, “[o]n information and belief[,] a member of the staff, faculty or administration actually filed the Title IX complaint” against the student.  For relief, petitioners seek expungement of the student’s short-term and long-term suspensions from his record, as well as expungement of any reference to a finding that he violated respondent’s Employee and Student Freedom from Sexual Harassment policy.

Respondent contends that the appeal must be dismissed as untimely and for failure to exhaust administrative remedies.  Respondent further argues that petitioners’ claims regarding Title IX are outside the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310.  Respondent further denies that the Title IX coordinator imposed additional discipline on the student.  Respondent also states, in any event, that the Title IX coordinator’s findings are not maintained in the student’s records, thus rendering petitioners’ request for expungement of these findings moot.

Petitioners’ challenge to the student’s short-term suspension must be dismissed as untimely.  Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578; Appeal of M.A., 45 id. 206, Decision No. 15,303).  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).

Here, respondent’s code of conduct does not require that parents appeal short-term suspensions prior to bringing an appeal to the Commissioner.  Therefore, petitioners were entitled to appeal the student’s short-term suspension to the Commissioner within 30 days after its imposition.  Petitioners admit that they received written notice of the short-term suspension on March 5, 2015.  Therefore, absent an appeal to respondent, petitioners were required to initiate an appeal of the short-term suspension by April 6, 2015.  Petitioners’ initiation of this appeal on April 27, 2015 was 51 days after the short-term suspension was imposed.  Petitioners have not set forth good cause for this delay in their petition.  Therefore, petitioners’ challenge to the short-term suspension must be dismissed as untimely.[2]

Even if petitioners’ claims of irregularities in the procedures followed in imposing the five-day suspension were not dismissed as untimely, they would 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, counsel for petitioners and counsel for the school district reached an agreement to resolve the superintendent’s hearing, and the parties stipulated on the record before the hearing officer that the student would enter a plea of no contest in return for a suspension from which the student would return to school on March 23, 2015.  As the Commissioner stated in Appeal of Martha and Peter F. (39 Ed Dept Rep 545, Decision No. 14,305):

Such knowing, voluntary stipulations should be given the same effect as if made in a court of law (see, e.g., Central New York Regional Market Authority v. John B. Pike, Inc., 120 AD2d 958, motion for leave to appeal denied, 69 NY2d 602).  A stipulation which resolves a proceeding in essence makes prior procedural errors moot (see, e.g., Birchwood Towers No. 2 Associates v. Schwartz, 98 AD2d 699 ....  A party seeking to set aside a stipulation bears a heavy burden of proof, and stipulations are seldom set aside without a showing of fraud, collusion, mistake, accident, or some other similar grounds (see, e.g., McKinney’s CPLR, C2104:3; 105 NY Jur 2d, Trial, §§267-273).

Petitioners have not articulated a sufficient reason why the stipulation should not be enforced.  Petitioners appear to argue that respondent’s subsequent determination concerning a Title IX complaint involving the same incident invalidated the stipulation.  However, despite petitioners’ arguments to the contrary, the Title IX coordinator’s findings do not alter the period of suspension agreed to by the parties.  Therefore, petitioners’ claims of procedural irregularities with respect to the short-term suspension also must be dismissed as moot (Appeal of Martha and Peter F., 39 Ed Dept Rep 545, Decision No. 14,305).

To the extent petitioners challenge the student’s long-term suspension, such claim must be dismissed for failure to exhaust administrative remedies.  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 in excess of five school days following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of R.A., 48 Ed Dept Rep 426, Decision No. 15,903; Appeal of D.H., 47 id. 77, Decision No. 15,631).  Here, petitioners did not, as required by Education Law §3214(3)(c)(1) and respondent’s policy, appeal the superintendent’s March 11, 2015 determination to respondent.  Therefore, to the extent petitioners challenge the student’s long-term suspension between March 12, 2015 and his return to school on March 23, 2015, the appeal must be dismissed for failure to exhaust administrative remedies.[3]

Finally, petitioners’ challenge to the Title IX coordinator’s findings must be dismissed for lack of subject matter jurisdiction.  An appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under Title IX (see 20 U.S.C. §1681 and 34 CFR §106.71; Appeal of Berman, 46 Ed Dept Rep 64, Decision No. 15,442).  Therefore, I lack jurisdiction to review the underlying factual determinations concerning petitioners’ claims in this regard. 

Even if it were within my jurisdiction, petitioners’ Title IX claim would be dismissed as moot based upon the relief sought by petitioners.  Here, the sole relief petitioners seek in this regard is expungement from the student’s record of any finding that the student violated respondent’s Employee and Student Freedom from Sexual Harassment policy.  However, respondent contends that it does not, and will not, maintain any record of this finding in the student’s educational record.  Respondent’s Title IX coordinator attests that such finding letters “are not put into student educational files,” but are maintained “in a separate file that stays in my office and is not shared with any student records.”  The Title IX coordinator specifically states that the student’s record “does not contain a copy of, or reference to, this letter.”  Therefore, I agree with respondent that petitioners’ request for expungement is academic under the circumstances and, were it within my jurisdiction, would be dismissed as moot.

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

THE APPEAL IS DISMISSED.

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