Appeal of J.A. and D.S., on behalf of their child, from action of the Board of Education of the Chappaqua Central School District regarding student discipline.

Decision No. 18,104

(April 4, 2022)

Littman Krooks LLP, attorneys for petitioner, Marion M. Walsh, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Elizabeth A. Ledkovsky, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the decision of the Board of Education of the Chappaqua Central School District (“respondent”) to impose discipline upon their child (“A.B.” or “the student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student attended respondent’s high school.  In June 2020, district administrators learned of a social media post uploaded by a student who is not the subject of this appeal.  According to respondent, the post contained a clip that portrayed A.B. using a racial epithet.  The principal investigated and concluded that A.B. was responsible for creating and uploading the underlying clip featured in the June 2020 post.[1]

In a letter hand-delivered to petitioners on June 11, 2020, the principal informed petitioners that a five-day suspension would be imposed from Friday, June 12, 2020 to Thursday, June 18, 2020.  The letter indicated that petitioners “ha[d] the right to request an immediate informal conference” with the principal, where they could “ask questions of the complaining witnesses.”  Petitioners requested such a meeting by email dated June 12, 2020.

On June 16, 2020, petitioners met with the principal.  The parties disagree as to whether petitioners requested, or were declined the opportunity to, question complaining witnesses during the meeting.  The record reflects that the student served her suspension from June 12 through June 18, 2020.

Petitioners appealed the student’s suspension to the superintendent and respondent, who denied these appeals on June 23 and July 10, 2020, respectively.  This appeal ensued. 

Petitioners assert that respondent did not inform them of their rights to an informal conference with the principal and to question complaining witnesses prior to suspending the student.  Petitioners further contend that respondent improperly determined that the student constituted a continuing danger or ongoing threat of disruption.  Petitioners request expungement of the suspension from the student’s record.

Respondent asserts that the appeal must be dismissed for lack of verification by petitioners.  On the merits, respondent argues that it afforded petitioners the process due under Education Law § 3214 in connection with its imposition of discipline.

The petition must be dismissed for lack of verification.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  A petition must be verified by the oath of at least one of the petitioners.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Here, the verification is signed by petitioner’s counsel.  Petitioner’s counsel is not a petitioner in this appeal; therefore, her verification is improper and the appeal must be dismissed (Appeal of L.S. and M.R., 61 Ed Dept Rep, Decision No. 18,077; Appeal of T.B., 60 id., Decision No. 17,969; Appeal of Waronker, 59 id., Decision No. 17,790).[2]

Petitioners argue that it was appropriate for their attorney to verify the petition as it contained “legal conclusions”; that attorney verification is permissible under the New York Civil Practice Law and Rules (“CPLR”); and that they corrected the error by submitting a corrected verification with their reply.  I do not find these arguments persuasive.  Prior decisions of the Commissioner have not allowed parties to utilize provisions of the CPLR in lieu of applicable provisions of the Commissioner’s regulations (e.g., Appeal and Application of Lovinsky and Simpson, 57 Ed Dept Rep, Decision No. 17,422; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310) or to retroactively amend their pleadings (Appeal of Y.O., 59 Ed Dept Rep, Decision No. 17,842; Appeal of A.B., 58 id., Decision No. 17,527).  Therefore, there is no basis to excuse petitioners’ lack of verification.

While the appeal must be dismissed, I remind respondent that:  (1) a principal cannot reach a decision to suspend a student before offering his or her parents the opportunity for an informal conference with the principal, at which they can question complaining witnesses; and (2) any determination that a student constitutes a continuing danger or ongoing threat of disruption must be set forth in the notice of suspension (see Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988).

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

THE APPEAL IS DISMISSED.

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