Decision No. 13,718

(December 30, 1996)

MILLS, Commissioner.--Petitioners challenge the respondents' decision to suspend petitioner Michael Duffy for five days. The appeal must be dismissed.

By letter dated August 14, 1995, respondent superintendent notified petitioner Dennis J. Duffy and his wife that a hearing was scheduled pursuant to Education Law '3214(3) to consider disciplinary action against their son. Michael was charged with being insubordinate or disorderly and a danger to the safety, morals, health or welfare of others by possessing a cigarette lighter and starting a fire on school premises and by addressing the summer school principal with obscene language.

A hearing was held on September 8, 1995. The superintendent found Michael guilty of the charges based on Michael's admissions and supporting testimony, and imposed a five day suspension. On appeal, respondent board allowed Mr. Duffy and the district's attorney to present oral argument. Upon review of the record, respondent board remanded the proceeding due to gaps in the testimony on the audiotapes of the hearing. A second hearing was held on December 4, 1995 for the purpose of completing the record. On January 17, 1996, respondent board affirmed the superintendent's finding of guilt and penalty. This appeal ensued.

Petitioners contend that their due process rights were violated. Specifically, petitioners challenge respondents' scheduling of the hearing during school hours, thereby requiring student witnesses to miss class. Petitioners also challenge the superintendent's refusal to allow testimony from minors without parental approval. Petitioners argue that the superintendent only called witnesses favorable to the district's case. Finally, petitioners contend that respondents failed to subpoena a witness they requested. Petitioners request a new hearing and reimbursement for costs.

Respondents raise a number of procedural defenses and maintain that they did not violate petitioners' due process rights. First, respondents argue that the appeal must be dismissed because of improper service. Petitioners name the board of education, its individual members, and the superintendent of schools as respondents. 8 NYCRR '275.8 requires that a copy of the petition be personally served upon each named respondent. However, the record indicates that service was made only upon respondent board. Therefore, to the extent the petition requests that I take action against any individuals other than respondent board of education, such claims must be dismissed for failure to properly join such individuals as parties to this appeal by serving the petition upon them (Appeal of Kriaris, 31 Ed Dept Rep 353; Appeal of Healy, 29 id. 391; Appeal of Giglia, 27 id. 453).

Respondents also argue that the appeal must be dismissed because it is moot and petitioners do not request expungement of Michael's disciplinary record. Indeed, the Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of the Bd. of Educ., East Ramapo Central School Dist., 35 Ed Dept Rep 542). However, where, as here, the disciplinary action remains on the student's record, a live controversy remains and the appeal will not be dismissed as moot (Appeal of Wilson, 28 Ed Dept Rep 254). Although petitioners did not specifically request expungement, it is implicit in their request for a new hearing that if, as a result of a new hearing, Michael were not found guilty, record of the suspension he served would be expunged.

The appeal must be dismissed because respondents did not violate petitioners' due process rights. Education Law '3214 requires that a student be given written notice of the charges against him and a hearing prior to suspension (Appeal of Meredith, 33 Ed Dept Rep 530). Specifically, Education Law '3214(3)(b) governs suspensions of five days or less which are imposed by a principal. Section 3214(3)(c) sets out the procedures to be followed before a student can be suspended for more than five days.

Although the full hearing procedures set forth in Education Law '3214(3)(c) do not apply to suspensions of five days or less, school districts are required to impose such discipline consistent with fundamental fairness (see, e.g., Appeal of Danison, 31 Ed Dept Rep 169; Appeal of Forster, 31 id. 443; Appeal of Blish, 32 id. 171; Appeal of Allert, 32 id. 242). Where a principal suspends a student for five days or less, Education Law '3214(3)(b) and 8 NYCRR '101.2(l)(4) define fundamental fairness to require that persons in parental relationship have the opportunity, if they choose, to question the complaining witnesses in the presence of the principal who imposed the suspension and who has the authority to terminate or reduce the suspension. The purpose of '3214(3)(b) is to allow the principal to decide whether his original decision to suspend was correct or should be modified (Appeal of Jones, 35 Ed Dept Rep 1).

In this case, no principal's suspension was imposed. Rather, a formal superintendent's hearing was held, resulting in a five-day suspension, which was later affirmed by the board. I need not determine whether the due process protections ensured by Education Law '3214(3)(c) were provided because Michael was not suspended for more than five days. Rather I must determine whether the due process petitioners were afforded meet the fundamental fairness standard.

At the hearing, petitioners had the opportunity to question complaining witnesses on the record. These witnesses included a teacher who observed the fire, administrators to whom Michael admitted responsibility for the fire, the summer school principal to whom Michael directed the obscene language, and teachers who observed the incident between Michael and the principal. Petitioners also had the opportunity to testify and to call witnesses on their behalf. Thus, petitioners had ample opportunity to question complaining witnesses and to present their case before the superintendent made his decision. In addition, according to respondents, Mr. Duffy also presented his arguments to the board both orally and in writing on appeal. Therefore, I conclude that the due process protections provided by respondents exceeded the standard of fundamental fairness to which petitioners were entitled.

THE APPEAL IS DISMISSED.

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