Decision No. 13,211

(June 30, 1994)

Robert A. Becher, Esq., attorney for petitioner

Whiteman Osterman & Hanna, Esqs., attorneys for respondent, Melvin H. Osterman and Beth A. Bourassa, Esqs., of counsel

Petitioner appeals the decision of the Board of Education of the Lansingburgh Central School District ("respondent") to suspend her son for four days. The appeal must be dismissed.

Petitioner's son, Dan, is an eighth grade student at Knickerbacker Middle School in the Lansingburgh Central School District. On January 5, 1994, Dan was in gym class. In response to a directive from the gym teacher, Dan answered with an obscenity. The gym teacher wrote a disciplinary referral describing the incident and sent it to the building principal. Based on that referral and two others that occurred on January 3 and 5, 1994, the principal decided to suspend petitioner's son from school for four days.

Dan served the first day of his suspension on January 6, 1994. Petitioner then requested that the principal postpone the remainder of the suspension to examine the matter further. Petitioner subsequently appealed the principal's decision to the superintendent. By letter dated January 20, 1994, the superintendent upheld the suspension. Petitioner then appealed the decision to respondent board. By letter dated January 27, 1994, respondent upheld the suspension. Although petitioner asked respondent to reconsider its decision, the board reaffirmed its previous determination in a letter dated February 24, 1994. This appeal ensued.

Petitioner alleges that abusive language has been tolerated in gym class and that Dan is being discriminated against because he was the only student actually punished for using such language. Petitioner also alleges that the suspension is excessive and asks that it be set aside.

Respondent raises a number of procedural objections, including that the petition is untimely, moot, fails to state a cause of action and fails to request relief that may be granted. Respondent also contends that the suspension was reasonable, not excessive and complies with the requirements of Education Law '3214.

Before reaching the merits, I must first address several procedural issues. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16; Appeal of Johnson, 33 Ed Dept Rep 183; Appeal of Sima-Eichler, 31 id. 550). Respondent contends that the appeal is untimely because it rendered its final determination to uphold the suspension on January 27, 1994 and this appeal was not served until March 21, 1994, more than 30 days later. While petitioner sought reconsideration of respondent board's decision, a request for reconsideration does not extend the time in which to bring an appeal (Appeal of Sporer, 33 Ed Dept Rep 97; Appeal of Defense, 24 id. 198; Appeal of Tripi, 28 id. 349). Therefore, the appeal must be dismissed as untimely.

Respondent also contends that the petition is moot because Dan already served the four day suspension on January 26, 1994 and March 7 to 9, 1994. The Commissioner of Education will only decide matters in controversy and will not render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Allert, 32 Ed Dept Rep 242; Appeal of Wilhelm and Lynn R., 31 id. 509; Appeal of Vachon, 28 id. 276). Since Dan has already served the suspension and petitioner does not raise the issue of expungement of her son's record, the appeal is moot and must be dismissed on that basis as well.

The appeal must also be dismissed on the merits. Petitioner's son was suspended from school for directing abusive language towards a staff member. Petitioner attempts to show, through affidavits of her son's classmates, that profanity had been previously tolerated in gym class and that respondent's policy was therefore imposed in a discriminatory manner against her son. This defense is novel and without merit since the language used by petitioner's son should not be tolerated in a school setting. Respondent has adequately addressed the allegation of its tolerance of abusive language in its schools through the submission of redacted disciplinary records which demonstrate that it has previously addressed similar conduct by suspensions in accordance with school policy. Respondent's policy authorizes a suspension of up to five days for a first offense of profanity directed toward staff.

A decision to suspend a student from school must be based upon competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Warner, 32 Ed Dept Rep 533; Appeal of Kittell, 31 id. 419). Upon my review of the record, I find that petitioner's son participated in the objectionable conduct and that respondent's determination was reasonable under the circumstances.

THE APPEAL IS DISMISSED.

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