Decision No. 12,977

(August 2, 1993)

Giovanni Genovese, Esq., attorney for petitioner

SOBOL, Commissioner.--Petitioner appeals from respondent's decision to suspend her son for the remainder of the semester. The appeal must be dismissed.

Petitioner's son is a 14 year old student who attended respondent's middle school prior to his suspension. On March 1 and 2, 1993, while in school, Jonathan allegedly sold a crushed powdered substance to two students and gave a vial of the substance to a third student in violation of the school's discipline code. The student admitted the violation in a written statement to the New York State Police on March 4, 1993. On March 8, 1993, respondent suspended Jonathan from school for five days for the possession and sale of drugs. On the same date, the principal advised petitioner in writing that a superintendent's hearing would be scheduled for March 11. The hearing was held and following it, the superintendent found petitioner's son guilty and suspended him from school for the remainder of the school year. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits of this appeal was denied.

Petitioner alleges that she did not receive notice of the hearing until March 10 and advised the superintendent that day that she needed more time to obtain counsel. She contends that despite her request, the hearing was held the following day. Petitioner alleges that as a result, she was denied her right to an attorney, to cross-examine witnesses, and to present witnesses on her son's behalf. Petitioner seeks to overturn the superintendent's decision.

Respondent contends that the appeal must be dismissed because petitioner failed to exhaust her administrative remedies since she has not appealed the superintendent's determination to the board of education. Respondent denies that Jonathan was denied his rights at the hearing. Respondent also contends that the penalty imposed was appropriate.

Petitioner's son was suspended from March 8, 1993 until June 30, 1993. The school year has ended and the suspension has been served. Since the Commissioner only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists, or which subsequent events have laid to rest, the appeal is moot to the extent that petitioner seeks her son's reinstatement (Appeal of Warner, 32 Ed Dept Rep 533; Appeal of Langenmayr, 30 id. 322; Appeal of Vachon, 28 id. 276).

Petitioner's assertion that she advised the superintendent that she was unable to obtain counsel in time for the hearing is not supported by the record. Although petitioner raises that issue in the present proceeding, there is no evidence that she raised her objections on the record below. In fact, my review of the hearing transcript reveals that while petitioner's due process rights were adequately explained to her, she made no request for an adjournment of the hearing nor did she raise any objections to the proceedings at that time. In the absence of any request for an adjournment or evidence of any record of an attempt to preserve her objections at the hearing, I will not entertain them for the first time here (Appeal of Albanese, 26 Ed Dept Rep 327; Matter of Labriola, 20 id. 74; Matter of Wilkins, 19 id. 190; Matter of Davis, et al., 12 id. 130).

Finally, the decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Kittell, 31 Ed Dept Rep 419; Appeal of Ezard, 29 id. 135). Petitioner's son admitted that he sold a crushed powdered substance which he identified as speed to other students. The fact that the substance was actually codeine does not mitigate his actions. Upon review of the record, I find no basis to conclude that the procedures followed in the course of the hearing were improper or that the superintendent's determination was arbitrary or unreasonable.

THE APPEAL IS DISMISSED.

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