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Decision No. 13,135

Decision No. 13,135

Appeal of LUCY LEWIS, on behalf of her son, Richard, from action of the Board of Education of the Walton Central School District regarding student discipline.

(March 18, 1994)

HEADNOTES

PROCEDURE - Jurisdiction - Moot Controversy

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists or that subsequent events have laid to rest. In this case, the petitioner requested that her son,'s suspension be lifted. However, the suspension was lifted when the student was allowed back to school. Therefore, the appeal was dismissed as moot.

STUDENTS - Disciplinary Proceedings – Evidence

A student's anecdotal record may be received in evidence at a disciplinary hearing and considered after a finding of guilt as to specific charges to fix the penalty. Here, the student's anecdotal record was introduced at the hearing only after a determination of guilt by the hearing officer. Therefore, the appeal was dismissed.

STUDENTS - Disciplinary Proceedings – Suspension

A decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct. In this case, the hearing officer's determination of guilt was based on competent and substantial evidence. Therefore, the appeal was dismissed.

APPEARANCES OF COUNSEL

Legal Aid Society of Mid-New York, Inc., attorney for petitioner, AprilJ.Smith, Esq., of counsel
Hogan & Sarzynski, Esqs., attorneys for respondent, Michael G. Surowka, Esq., of counsel

DECISION OF THE COMMISSIONER

SOBOL, Commissioner.--Petitioner appeals respondent's decision to suspend her son for the 1993-94 school year. The appeal must be dismissed. Petitioner's 16-year-old son, Richard, was scheduled to be in respondent's eleventh grade for the 1993-94 school year. On June 22, 1993, Richard allegedly talked loudly and made loud noises during a Global Studies Regents Competency exam and failed to comply with a directive to stop. On June 24, 1993, Richard allegedly used an obscenity in referring to a teacher and then placed his arm around the same teacher and sarcastically called him "buddy."

On July 28, 1993, petitioner was sent a notice of charges alleging insubordination and disorderly conduct based upon the above-referenced incidents. A hearing was held on August 30, 1993. Following the hearing, the superintendent found Richard guilty and suspended him from school for the 1993-94 year. This finding was modified by the board of education to require Richard's re-admission to school on the condition that he sign a contract of conduct. Richard signed the contract on October 22, 1993 and resumed fulltime attendance the next school day. This appeal ensued.

Petitioner contends that the penalty imposed against her son is excessive. She seeks to have the suspension revoked and her son released from the contract of conduct. Respondent seeks to have the appeal dismissed as moot, since Richard withdrew from its high school on November 17, 1993. Furthermore, respondent contends the appeal must be dismissed because petitioner seeks to revoke the suspension, which was effectively done by the board when it required Richard's re-admission after he signed the contract of conduct. Finally, respondent asserts the penalty was appropriate in view of Richard's anecdotal record.

With regard to petitioner's request to lift her son's suspension, that suspension was lifted when respondent allowed Richard back to school. Concerning the contract of conduct, Richard no longer attends respondent's school. The Commissioner will only decide 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 (Appeal of Pierrot, 33 Ed Dept Rep 67; Appealof Warner, 32 id. 533; Appeal of Langenmayr,, 30 id. 322). This appeal is, therefore, dismissed as moot.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. A 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 Pierrot, supra; Appeal of Kittell, 31 Ed Dept Rep 419). The record establishes that the hearing officer's determination of guilt was based on competent and substantial evidence. As such, there is no basis to overrule the decision or otherwise find the decision arbitrary, capricious or unreasonable (Appeal of Kittell, supra; Matter ofChapman, 28 Ed Dept Rep 272; Matter of Cuffee, 7 id.60).

Concerning the penalty, it is well settled that a student's anecdotal record may be received in evidence at a disciplinary hearing and considered after a finding of guilt as to specific charges to fix the penalty (Appeal of Ezard, 29 Ed Dept Rep 135; Matter of Stokes, 25 id. 117). The record reflects that Richard's anecdotal record was introduced at the hearing only after a determination of guilt by the hearing officer. The anecdotal record was used,therefore, only to fix the penalty and cannot be the basis to overrule thedecision or otherwise find it arbitrary, capricious or unreasonable (Appealof Kittell, supra; Matter of Chapman, supra; Matter of Cuffee, supra).

The anecdotal record reveals that petitioner's son was disciplined for acts of insubordination and other disruption on four occasions in 1992 and sevenoccasions in 1993. Based on the foregoing, I find that the penalty imposedupon petitioner's son was not so excessive as to warrant substitution of myjudgment for that of respondent (Appeal of Kittell, supra; Appeal of Vachon, 28 Ed Dept Rep 276).

THE APPEAL IS DISMISSED.