Appeal of F.P, on behalf of his child, from action of the Board of Education of the Webster Central School District regarding student discipline.

Decision No. 18,525

(November 25, 2024)

Refermat & Daniel PLLC, attorneys for petitioner, John T. Refermat, Esq., of counsel

Ferrara Fiorenza PC, attorneys for respondents, Lindsay A.G. Plantholt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Webster Central School District (“respondent”)[1] to impose discipline upon his son (“student A”).  The appeal must be dismissed.

On November 14, 2023, student A and a classmate (“student B”) engaged in a physical altercation.  The principal interviewed the students thereafter, who stated that the conflict began with “trash talking” in physical education class, and that, later in the day, student B slapped student A on the back of the head.  The students’ accounts diverged thereafter.  Student A stated that, after the slap, the students “started slapping and punching each other on the ground.”  Student A admitted that he “threw some punches” and hit student B in the groin during this process.  Student B indicated that student A “jumped ... him, tried to put him in a headlock, and punched him in the genitals.”  The principal also reviewed surveillance footage of the incident, which generally “corroborate[d] the information obtained from the student interviews.”

By letter dated November 15, 2023, the principal suspended student A for five days, finding that his immediate suspension was necessary as he presented a continuing danger/ongoing threat of disruption.  Petitioner participated in an informal conference later that day in which he viewed a “screen recording” of the surveillance video of the incident on the principal’s phone.  Appeals to the superintendent and respondent were denied, and this appeal ensued.

Petitioner contends that respondent failed to disclose all relevant facts, including how many surveillance videos of the incident exist.  Petitioner further asserts that respondent did not comply with its code of conduct and that the student acted in self-defense.  

Respondent denies petitioner’s contentions, arguing that he has not demonstrated a clear legal right to any relief.

First, I must address a procedural matter.  Petitioner’s reply and memorandum of law are untimely.  Although petitioner obtained an extension of time to submit these papers on May 31, 2024, they were not sent via mail until June 12, 2024.  Petitioner’s transmission of these pleadings via email was irrelevant as the practice regulations do not permit service of papers via email (see 8 NYCRR 275.8 [b]; Appeal of C.B., 59 Ed Dept Rep, Decision No. 17,840).  Therefore, I decline to consider petitioner’s reply and memorandum of law.[2]

Turning to the merits, students may defend themselves from physical force by engaging in “acts which are necessary to protect [themselves] from attack” (Appeal of G.J.-F., 58 Ed Dept Rep, Decision No. 17,608).  Students may only engage in “sufficient force to reasonably” protect themselves from harm (id.). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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 not submitted an affidavit or statement from the student, or any other evidence, demonstrating that the student’s actions were justified on the ground of self-defense (Appeal of G.J.-F., 58 Ed Dept Rep, Decision No. 17,608; Appeal of a Student with a Disability, 49 id. 452, Decision No. 16,079).  Moreover, the record reflects that student A admitted that, after being slapped, he “threw some punches” and hit student B in the groin.  I find these actions disproportionate to the initial provocation by student B (see Appeal of D.S. and D.S., 45 Ed Dept Rep 289, Decision No. 15,327; Appeal of P.M., 44 id. 437, Decision No. 15,223).

Additionally, the record reflects that respondent twice afforded petitioner access to a video recording portraying the incident in question.  While petitioner asserts that he has personal knowledge that additional recordings exist, he submits no proof in support of this contention.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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