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Decision No. 13,085

Appeal of STEPHEN M. MACNEILL from action of the Board of Education of the Cazenovia Central School District regarding student discipline.

Decision No. 13,085

(December 31, 1993)

Grossman, Kinney, Dwyer, Reitz & Harrigan, P.C., attorneys for respondent, Susan T. Johns, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges on procedural and substantive grounds his suspension from school. The appeal must be dismissed.

At the time this appeal was commenced, petitioner was a senior at Cazenovia Central School. On or about April 29, 1993, petitioner's physics teacher sent a discipline referral regarding petitioner to the high school principal. The teacher alleged that petitioner had cheated in class by using an answer key and that, when sent to the principal's office, petitioner had used inappropriate language.

On May 7, 1993 the physics teacher sent to the principal a second discipline referral concerning petitioner. This time, the teacher alleged that petitioner had been disobedient, disrespectful and/or insubordinate and had made statements to the teacher that could be construed as threatening.

On May 13, 1993, petitioner and his mother, Mrs. MacNeill, met with the principal and the physics teacher. At that meeting, Mrs. MacNeill questioned the teacher concerning the April 29 incident and requested that the principal investigate the May 7 incident. Thereafter, the principal suspended petitioner for two days for the April 29 incident. On May 14, 1993 the principal contacted petitioner and Mrs. MacNeill and requested that they meet with him on May 17, 1993 to discuss the results of his investigation concerning the May 7 incident.

At that meeting, the principal shared with petitioner and his mother the principal's conclusion that the physics teacher had accurately related the events of May 7 and that, therefore, he was suspending petitioner for three days. In addition, he indicated that he was removing petitioner from the physics class for the remainder of the school year. Petitioner asked whether he could complete the course as an independent study project. The principal denied that request.

Later that day, petitioner and his mother met with the superintendent regarding the infraction and the penalty imposed. The superintendent upheld the penalty of a three-day suspension for the May 7 incident and indicated that he would permit petitioner to complete the physics course as an independent study project if he could find a teacher willing to tutor petitioner. That same evening, petitioner's mother appeared before the board of education to challenge the suspension. Respondent voted to uphold the three-day suspension. However, respondent decided that petitioner could continue in the physics course for the remainder of the school year as an independent study project under the supervision of another physics teacher with one-to-one tutoring, if needed. Petitioner ultimately passed the physics course and graduated from high school with his class.

Petitioner raises numerous objections to the investigation of the disciplinary referrals and the procedures followed by respondent. Petitioner asserts that his due process rights were violated, that he was not informed of his rights, that he was improperly removed from the physics class and that his disciplinary file contains numerous inaccuracies.

Respondent contends that petitioner was suspended for less than five days and that he received all of the process to which he was due. In addition, respondent contends that petitioner's three-day suspension for being disrespectful to a teacher was not disproportionate to the offense.

With respect to petitioner's claims concerning the use of his disciplinary file, respondent affirms that his disciplinary records have been separated from his permanent educational records, filed in storage and will never be used again. Therefore, any issues concerning those records are now moot.

With respect to possible inaccuracies in his records, respondent contends that petitioner has not availed himself of the procedures provided by the Family Education Rights and Privacy Act (20 USC 1232g), as codified in the district's policy on student records and, therefore, has failed to exhaust his administrative remedies.

Education Law '3214(3)(d) states that in the case of a suspension of five days or less, the pupil and the person in parental relationship to him shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of complaining witnesses. The record establishes that prior to his suspension for the April 29 incident, petitioner and his mother met with the principal and the physics teacher to explain his version of the events. For this incident, petitioner was suspended for two days. At this meeting, the May 7 incident was also discussed with the principal and the physics teacher, and a subsequent investigation was conducted. Petitioner and his mother subsequently appealed the three-day suspension for the May 7 incident to the superintendent and to the board of education. Accordingly, with respect to those suspensions, respondent met the standard of fairness required under Education Law '3214(3)(d).

However, the principal's attempted removal of petitioner from physics class for the remainder of the school year violated the Education Law. A principal is not authorized to remove a student from class for a period in excess of five days (Matter of House, 11 Ed Dept Rep 215). Removal from attendance for a period in excess of five school days may only be ordered by the superintendent of schools or the board of education, and an opportunity for a hearing must be provided in accordance with the procedures set forth in Education Law '3214(3)(c). The procedures provided for by Education Law '3214(3)(c) include the student's rights to representation by counsel, to question witnesses, to present witnesses and other evidence and to have a record made of the hearing. In this instance, however, the board of education ultimately decided not to remove petitioner from the physics class, but to allow him to complete the course as an independent study project. Accordingly, although illegal, the issue of petitioner's removal from the physics class is now moot. Because the Commissioner of Education will not render a decision on a controversy which subsequent events have laid to rest (Appeal of Impellizzeri, 32 Ed Dept Rep 26; Appeal of DiMilia, 30 id. 391; Appeal of Sileo, 28 id. 313), I will not decide petitioner's claim concerning improper removal from the physics class.

On the merits of the two suspensions, the record indicates that the penalties imposed were not disproportionate to the offenses, and petitioner was provided an opportunity to explain his version of the events and to question the complaining teacher.

With respect to petitioner's challenge to the content of his educational records, petitioner's attention is directed to the procedures set forth in the district's policy on student records which explains how to challenge and correct inaccurate or misleading student records.

I have reviewed petitioner's remaining contentions and find they are without merit.