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

Decision No. 17,553

(December 18, 2018)

Kathryn McCary, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Shenendehowa Central School District (“respondent”) to impose discipline on her son (“the student”).  The appeal must be sustained in part.

During the 2017-2018 school year, the student attended sixth grade in respondent’s district and received special education services pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law.  On February 1, 2018, at or about 11:45 a.m., respondent’s middle school principal (”principal”) contacted petitioner and advised her that the student needed to be picked up from school immediately.  The principal further stated that the student was suspended out-of-school for five days from February 2, 2018 through February 8, 2018.  At approximately 12:45 p.m., petitioner picked up the student and was provided with a notice of suspension dated February 1, 2018.

The notice advised petitioner that the student had received an “[o]ut of [s]chool [s]uspension on February 2 through February 8” for “[a]ggression toward an adult,” “[a]ggression toward peers,” and “[s]ignificant non-compliance with administrative and staff directives.”  The letter was signed by respondent’s middle school assistant principal (“assistant principal”) and stated that petitioner had the “right to request a conference” with the signatory; i.e., the assistant principal.

By email dated February 1, 2018, petitioner wrote to the principal and stated that she believed the imposition of a five-day suspension on the student would be harmful to him and therefore, “the carrying out of suspension should be deferred ....”  She further stated that she would “keep [the student] out of school due to the toxic environment and effect on him.”  On February 2, 2018, the principal replied to petitioner’s email, stating that petitioner was entitled to a conference to discuss the suspension.  The principal offered to hold the conference later that afternoon, on Monday, February 5, 2018, or by telephone.  She further stated that “[t]he suspension will be imposed as of Tuesday [February 6, 2018] morning.”[1]

The record contains a “home tutoring eligibility” form dated February 2, 2018 completed by the student’s pediatrician which states that the student has “anxiety, inability to cope with stress, developmental delay, anger management, difficulty concentrating, [and] dysgraphia” that “impedes or prevents the student’s attendance at school.”  The pediatrician indicated that the student was unable to attend school from “the present” through April 16, 2018 and that the student was “participating in therapy ... to assist in [his] return to school.” 

By email dated February 4, 2018, petitioner appealed the student’s short-term suspension to respondent.[2]  By letter dated February 6, 2018, respondent’s superintendent wrote to petitioner and stated:

Given your decision to seek therapy for your son to address the issues that gave rise to the discipline, he need not serve any period of suspension other than Thursday afternoon.[3]  This is contingent on provision of satisfactory information to the District [] from his therapist [] indicating the progress he made in therapy, as well as documentation of what strategies the therapist helped him develop to address such situations in a productive manner in [the] future.   

The letter also stated that if the “requisite information is provided, [the district] will expunge the suspension upon his return [to school] on April 16, 2018.”  This appeal ensued.

Petitioner contends that respondent failed to provide proper advance written notice of the suspension; specifically, that she was not informed of her right to attend an informal conference with the principal with the opportunity to question complaining witnesses prior to the start of the student’s suspension.  Petitioner argues that because she was required to pick the student up from school immediately, and he was suspended for five additional school days, that the suspension was for five and one-half days, and therefore, he was entitled to additional due process protections.  Petitioner also makes numerous allegations related to the student’s disability and the provision of special education services to the student during the 2017-2018 school year.  For relief, petitioner requests that the suspension be expunged from the student’s record. 

Respondent argues that its decision to suspend the student was rational and that it followed all applicable laws and regulations in imposing the suspension.  Respondent also argues that, to the extent petitioner’s request for relief is predicated on allegations regarding the requirements of the student’s individualized education program (“IEP”) or the actions of the Committee on Special Education (“CSE”), the appeal must be dismissed because an appeal to the Commissioner cannot be used to challenge an IEP or its implementation.

I must first address the procedural issues.  With respect to petitioner’s reply, 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Additionally, respondent objects to petitioner’s submission of a reply memorandum of law dated April 25, 2018 with an accompanying letter dated April 26, 2018.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). 

By letter dated April 26, 2018, petitioner requested permission to submit a reply memorandum of law.  Petitioner argues that, in its memorandum of law, respondent raised defenses that were not raised in its answer to which she did not have an opportunity to respond.  She also argues that “there are errors in law and misconstruing of facts” in respondent’s memorandum of law.  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 Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Therefore, while I have reviewed respondent’s memorandum of law, I have not considered those portions containing new assertions or exhibits that are not part of the pleadings.  Accordingly, it is unnecessary to consider petitioner’s reply memorandum of law.  

Petitioner’s claims relating to respondent’s alleged violations of the IDEA and Article 89 of the Education Law must be dismissed for lack of jurisdiction.  Petitioner alleges that the district failed to properly implement the student’s IEP and did not conduct an updated functional behavioral assessment. Claims brought to enforce rights under the IDEA and Article 89, of the Education Law must be addressed through the due process provisions of the IDEA (20 USC §1415) and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).  To the extent that petitioner is raising special education claims governed by the IDEA and Education Law Article 89, which are properly the subject of an impartial hearing brought pursuant to Education Law §4404(1) and §200.5(j) of the Commissioner’s regulations,[4] I lack jurisdiction over such claims.

Turning to the merits, 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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).  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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).

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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884). 

Although not entirely clear, petitioner appears to further argue that, because she was required to pick the student up from school immediately on February 1, 2018, the student was suspended for more than five days and was therefore entitled to “additional due process rights.”  Here, the record indicates that petitioner picked the student up from school on February 1, 2018 and that the February 1 suspension notice stated that the suspension was to begin on February 2.  However, the principal’s February 2 email to petitioner indicated that the imposition of the suspension was thereafter delayed until February 6, at which time the record indicates that the student was already “out of school on medical leave as per his physician.”  Therefore, on this record, petitioner has not carried her burden of establishing that the student was suspended for more than five days and her claim in this regard must be dismissed.

Respondent committed multiple errors in imposing discipline upon the student which warrant expungement of the student’s short-term suspension.  First, the record reflects that respondent failed to provide petitioner with legally compliant written notice of the student’s suspension prior to its imposition.  The record reflects that the principal called petitioner on February 1, 2018 and informed her that the student needed to be “pick[ed] up from school immediately.”  When petitioner arrived, she was handed a letter which indicated that the student “had been suspended from school.”  The written notice of the five-day suspension does not indicate, as required, that the student’s presence in the school would pose a continuing danger or an ongoing threat of disruption (see e.g. Appeal of L.Z. and M.S., 56 Ed Dept Rep, Decision No. 17,034; Appeal of L.L., 51 id. Decision No. 16,334).  While respondent argues that neither Education Law §3214 or the Commissioner’s regulations “require [] that the ongoing danger or threat be explicitly referred to in the written notice,” I have so held in multiple decisions and respondent offers no persuasive reason to depart from this reasoning (see e.g. Appeal of Doe, 56 Ed Dept Rep, Decision No. 17,109; Appeal of L.Z. and M.S., 56 id. Decision No. 17,034; Appeal of L.L., 51 id. Decision No. 16,334). Therefore, under the circumstances presented, respondent had no authority to immediately suspend the student from instruction on February 1, 2018.

Moreover, respondent reached a decision to suspend the student before offering petitioner the opportunity for an informal conference with the principal and to question complaining witnesses.  The written notice indicated that the student had already been suspended, which defeated the purpose of the written notice requirement; namely, to afford the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).[5]

Additionally, while the letter informed petitioner that she had a right to “request a conference” with the signatory, the assistant principal, the statute does not authorize an assistant principal to suspend students, nor does it authorize the principal to delegate his or her 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). Therefore, the assistant principal had no authority to impose the student’s five-day out-of-school suspension, and the short-term suspension and its accompanying notice were ultra vires and must be annulled.

Furthermore, the February 1, 2018 notice of suspension from the assistant principal did not comply with the written notice requirement under Education Law §3214(3)(b)(1) and §100.2(l)(4) of the Commissioner’s regulations in that it failed to inform petitioner that she could request an opportunity to question complaining witnesses (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of P.D., 46 id. 50, Decision No. 15,438; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student Suspected of Having a Disability, 44 id. 475, Decision No. 15,236).  While the record is not entirely clear as to what misconduct the student engaged in, the nature of the charges - i.e., “[a]ggression toward an adult” and “[a]ggression toward peers” - presuppose that there were witnesses to these interactions.  Pursuant to Education Law §3214, petitioner had a right to question any complaining witnesses, and respondent’s failure to inform her of such right in the written suspension notice, in and of itself, warrants expungement of the short-term suspension (see Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).

Accordingly, any reference to the short-term suspension at issue in this appeal must be expunged from the student’s record. In light of this disposition, I need not address the parties’ remaining contentions. 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent annul and expunge from the student’s record any reference to the short-term suspension at issue in this appeal.

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