Appeal of G.-J.F., on behalf of his son C.F., from action of the Board of Education of the Riverhead Central School District regarding student discipline.

Decision No. 17,608

(March 27, 2019)

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Riverhead Central School District to impose discipline on his son, C.F. (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student attended respondent’s high school.  On October 17, 2018, the student was involved in a physical confrontation with another student (“the classmate”) at approximately 1:15 p.m. in the boy’s locker room.  Petitioner alleges that the classmate called the student a “gay f***,” to which the student replied “What?”  Petitioner next alleges that the classmate proceeded to “push [] [the student] against the wall with [his] left hand” on the student’s throat.  Petitioner additionally alleges that, while choking the student, the classmate “used his right hand to punch [the student] on the left side of his jaw.”  Petitioner asserts that the student “returned a punch” and the classmate “fell to the ground.”  According to the record, a gym teacher then arrived and spoke with both students who, “once confronted[,] ... cooperated with the teaching staff.”  The gym teacher completed a written report of his observations, which is part of the record on appeal.  The student was then seen by the school nurse, who, in turn, contacted petitioner.

In a letter dated October 17, 2018 the high school principal (“principal”) proposed suspending the student based upon the locker room altercation.  This letter apprised petitioner of his rights to an informal conference with the principal and to question complaining witnesses.  The letter further indicated that if the principal did “not receive a response regarding the informal conference, the suspension [would] commence on 10/18/2018.”

Also on October 17, 2018, the student initiated a complaint under the Dignity for All Students Act (“DASA”) based upon the locker room altercation.  The record reflects that, in an undated letter, the district’s director of professional personnel concluded that the incident on October 17, 2018 did not constitute a material incident of bullying or harassment, although he noted that the students’ schedules were changed such that they no longer “share[d] any classes together.”

Although not entirely clear from the record, it appears that petitioner met with the principal on October 18, 2018.  The record contains a written notice dated October 18, 2018 in which the principal suspended the student from October 18, 2018 through October 24, 2018.  Petitioner appealed this determination to the superintendent, who denied petitioner’s appeal in a written letter dated October 22, 2018.[1]  Petitioner subsequently appealed the superintendent’s determination to respondent, which denied petitioner’s appeal on November 28, 2018.[2]  This appeal ensued. 

Petitioner admits that the student punched the classmate but argues that the student’s actions were justified on the ground of self-defense.  In this respect, petitioner alleges that the classmate had bullied other students in the past, “is somewhat trained in karate,” and has previously directed “slurs” toward the student.  Petitioner further alleges that the proposed suspension notice did not indicate that the student was a continuing danger or ongoing threat of disruption.  Petitioner additionally claims that he asked to question complaining witnesses but that such requests were “repeatedly ignored and denied ....”  Petitioner also contends that the principal was biased in this matter; as proof, petitioner points to the principal’s political party affiliation and the fact that petitioner ran for political office under the banner of a different political party.  Petitioner requests expungement of the student’s suspension from his record.

Respondent contends that its determination to suspend the student was based upon competent and substantial evidence.  Respondent denies that petitioner asked to question complaining witnesses prior to imposition of the suspension and asserts that, when petitioner made this request several days after the student’s suspension, the principal agreed, but petitioner declined to do so.

First, I must address the procedural issues.  Petitioner submitted a late reply in this matter.  Petitioner asserts that the lateness should be excused because “respondent’s conduct ... has been egregious and time consuming....”  However, petitioner does not sufficiently explain what conduct allegedly affected his ability to respond to new material or defenses in respondent’s answer.  While petitioner suggests that he “is still discovering facts and parties that were witnesses” to the October 17, 2017 incident, I note that 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) and it 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).  On this record, therefore, I do not find that petitioner has proffered a sufficient excuse to justify acceptance of his late reply.

Petitioner also submitted a late memorandum of law.  Petitioner explains that he “had not intended to file a Memorandum of Law,” but seeks to respond to “obfuscations, exaggerations, characterizations and absurdities” in respondent’s papers.  Petitioner submitted this memorandum of law after respondent served its memorandum of law and, thus, petitioner’s submission is in the nature of a reply memorandum of law.  Reply memoranda of law may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4; Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053; Appeals of Gorsky et al., 47 id. 162, Decision No. 15,658).  A reply memorandum, however, may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053).  In light of the fact that petitioner did not submit a memorandum of law in the first instance and is proceeding pro se, I have accepted petitioner’s reply memorandum of law, but only to the extent that it consists of arguments of law (8 NYCRR §276.4).  Therefore, I have not accepted those portions which add belated assertions 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).

In his reply memorandum of law, petitioner argues that respondent’s answer must be struck because it was verified by counsel for respondent.  In an appeal from the action of a board of education of a school district, an answer must be verified by any person who is familiar with the facts underlying the appeal (8 NYCRR §275.5[a]; see Appeal of Charland, 32 Ed Dept Rep 291, Decision No. 12,833).  Here, petitioner has not established that counsel for respondent was unfamiliar with the facts underlying this appeal.  It does not appear that any school district officer or employee personally observed the events giving rise to the student’s suspension; instead, the principal imposed a five-day suspension based upon information relayed to him, and this determination was subsequently upheld by the superintendent and respondent.  Counsel for respondent may have been involved in some or any of these determinations below, thus acquiring the requisite familiarity with the facts.  In this respect, counsel for respondent states in the affidavit of verification accompanying the answer that the allegations are “true to [his] own knowledge,” and that any responses not based upon his knowledge were based upon a review of respondent’s “books, records and documents ....”   Thus, I cannot conclude on this record that counsel for respondent lacked familiarity with the facts such that he could not verify respondent’s answer (see Appeal of Quattrone, 58 Ed Dept Rep, Decision No. 17,601).  Accordingly, I decline to strike respondent’s answer from the record.

Turning to petitioner’s procedural challenges to the student’s short-term suspension, 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]).

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).

Petitioner has failed to meet his burden of proving that respondent violated Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) by not providing written notice of the student’s suspension and an opportunity for an informal conference until after the suspension commenced.  In this respect, petitioner alleges that the October 18, 2018 written notice of suspension “did not indicate, as it should have, ... that the student’s presence ... in the school would pose a continuing danger or an ongoing threat of disruption.”  However, as indicated above, a determination that a student constitutes a continuing danger or an ongoing threat of disruption merely excuses a district’s failure to provide notice and an opportunity for an informal conference prior to a student’s short-term suspension (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).   Thus, petitioner’s claim in this respect is only relevant insofar as he alleges that the student was improperly excluded from instruction on October 18, 2018 prior to his suspension.

 It appears from the record that petitioner met with the principal on October 18, 2018, that written notice of the suspension was delivered to petitioner at that meeting, and that the student’s suspension commenced on that same day.  While it is not entirely clear whether the student was excluded from school on October 18, 2018 prior to the meeting with the principal – which would be improper absent a finding that the student was a continuing danger or presented an ongoing threat of disruption – petitioner has failed to allege any facts or produce any evidence concerning this issue.[3]  Petitioner merely objects to the fact that the October 18, 2018 written notice did not contain a continuing danger determination.   However, the absence of such a finding is not relevant to the sufficiency of the written notice under the facts of this appeal, as the evidence in the record shows that petitioner received notice of his rights to an informal conference with the principal and to question complaining witnesses on October 17, 2018, one day prior to the student’s exclusion from school.  The October 17, 2018 “notice of out of school suspension consideration” document was in the form of the written notice required by 8 NYCRR §100.2(l)(4), advised petitioner of his right to an informal conference with the principal at which he could question complaining witnesses, and specifically advised petitioner that if the principal did not receive a response regarding the informal conference, the student’s suspension would commence on October 18, 2018.  Respondent alleges that petitioner did not make a request to question complaining witnesses prior to the meeting with the principal, and petitioner has provided no evidence to the contrary.

Petitioner has also failed to meet his burden of proving that respondent improperly denied his requests to question complaining witnesses.  The record indicates that petitioner made belated requests to question complaining witnesses on October 23 and 25, 2018. In the petition, petitioner makes a conclusory allegation that his requests to question complaining witnesses were “repeatedly ignored and denied” but submits no proof in support of this assertion.  Respondent, by contrast, submits an email from the principal to petitioner dated October 24, 2018 in which the principal stated, in pertinent part:

[P]rior to the commencement of the suspension[,] you were provided written notice of your right to question “complaining witnesses.”  You did not, at that time, request to interview any particular persons, and the suspension commenced.  Subsequently, and after the suspension began, you asked to interview the other student involved.  At the time of your request[,] the other student was not available due to his own discipline [sic] consequences ....

The principal further states in the email that the student admitted his guilt to “school personnel” following the October 17, 2018 altercation and indicated that petitioner could schedule an appointment to question these witnesses if he so wished.  Weighing the principal’s contemporaneous statement against petitioner’s conclusory statement in the petition, I find on this record that petitioner has failed to meet his burden of proving that he requested, or was improperly denied, an opportunity to question complaining witnesses prior to imposition of the student’s suspension.

Next, while petitioner does not contest that the student engaged in the conduct for which he was suspended — i.e., “[f]ighting in the boy’s locker room” – he alleges that the student’s conduct was justified because he acted in self-defense.  Prior decisions of the Commissioner have held that physical violence by a student is not acceptable and have generally declined to accept a student’s justification for fighting or other violent acts except in cases of self-defense (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,335 [student’s actions justified as self-defense under the circumstances]; Appeal of Doe, 57 id., Decision No. 17,323 [student’s fighting not excused where she sought to defend her brother]; Appeal of the Parent of a Student with a Disability, 53 id., Decision No. 16,574 [conduct provoked by victim]; Appeal of R.Y., 49 id. 336, Decision No. 16,046 [self-defense not proven where student alleged to be the victim of past bullying and harassment but the record did not establish who initiated the physical altercation, the student failed to comply with directives to stop fighting, and the student had to be physically separated from another student]; Appeal of Steven and Mary Ann M., 39 id. 785, Decision No. 14,380 [self-defense not proven based on past alleged threats by victim where student punched the victim and petitioner did not prove that the student had been provoked]).  Self-defense is a limited defense insofar as it only provides justification for acts which are necessary to protect the individual from attack, and only permits sufficient force to reasonably provide such protection (see Dupre v. Maryland Mgmt. Corp., 283 AD 701; Van Vooren v. Cook, 273 AD 88; Decker v. Werbenec, 36 Misc2d 220; Zannone v. Pollino, 155 NYS2d 836; Curtis v. Kozeluh, 50 NYS2d 883; Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,335).

On this record, petitioner has failed to meet his burden of proving that the classmate initiated the altercation or that the student acted in self-defense.  While petitioner makes allegations in the petition regarding self-defense, such allegations are not entitled to significant weight as petitioner had no personal knowledge of the October 17, 2018 altercation.  Conspicuously, petitioner has not submitted an affidavit or statement from the student.[4]  Moreover, the gym teacher who witnessed the aftermath of the fight indicated in his written report that the student and the classmate presented “contradict[ory]” accounts to him regarding “who initiated the physical contact.”  Thus, the record only supports a finding that each participant in the altercation blamed the other for initiating physical contact.

 Moreover, the gym teacher stated in his report that the student who is the subject of this appeal “admitted to initiating verbal contact” with the classmate.[5]  Although petitioner does not address this allegation in the petition, the gym teacher’s statement arguably contradicts petitioner’s statement that it was the classmate who initiated the interaction by calling the student a “gay f***.”  Therefore, on this record, petitioner has not met his burden of proving that the classmate initiated the physical altercation, that the student engaged in acts which were necessary to protect himself from attack, or that the student only utilized sufficient force to reasonably provide such protection.

Finally, petitioner’s claim that the principal was biased against him and his son is entirely speculative.  There is no proof in the record whatsoever that the principal acted with bias toward petitioner or his son based upon political affiliation or otherwise.

In light of the above disposition, I need not address the parties’ remaining contentions.  However, nothing herein should be construed as minimizing the serious safety, social, and emotional issues raised by harassment and bullying in public schools.

THE APPEAL IS DISMISSED.

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