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Decision No. 13,959

Appeal of J.M., on behalf of K.M., from action of the Board of Education of the Valley Stream Central High School District regarding student discipline.

Decision No. 13,959

(June 15, 1998)

Michael Kaszurbski, Esq., attorney for petitioner

Guercio & Guercio, attorneys for respondent, Maureen E. Halloran, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Valley Stream Central High School District ("respondent") regarding the suspension of her daughter. The appeal must be dismissed.

On or about March 18, 1997, K.M. was involved in an altercation across the street from Valley Stream Central High School, where she was a senior. On April 2, 1997, the superintendent found K.M. guilty of insubordination, disorderly conduct, and endangering the health, safety and welfare of others, for fighting and ignoring the instructions of school aides to stop, and suspended her for the remainder of the school year. Petitioner appealed to respondent, which upheld the suspension and indicated that K.M. would receive home instruction and that she could attend her prom and graduation. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on May 20, 1997.

Petitioner argues that the penalty was excessive. Petitioner also claims that respondent failed to respond to her requests for information regarding similar incidents in the district. Respondent argues that petitioner has failed to demonstrate by competent and substantial evidence that the penalty was excessive.

The appeal must be dismissed because it is moot. The Commissioner of Education 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 (Appeal of Oyibo, 37 Ed Dept Rep 356; Appeal of Alexander, 36 id. 160). Petitioner appealed the severity of the penalty imposed, not the finding of guilt. Thus, the only relief that could be granted, other than interim relief which was already denied, would be a reduction in the duration of the suspension. The suspension expired at the end of the 1996-97 school year, and respondent indicates that K.M. completed her coursework and received a diploma. Any finding with respect to the appropriateness of the penalty is, at this point, academic. Accordingly, the appeal is moot.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on its merits. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Alexander, supra; Appeal of Durkee, 20 Ed Dept Rep 94). The test to be applied in reviewing the penalty in a case of student discipline is whether the penalty imposed by the board was so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Alexander, supra; Appeal of Forestiero, 34 Ed Dept Rep 592). Where a penalty is excessive, I will substitute my judgment for that of the board of education (Appeal of Alexander, supra; Appeal of Tietje, 34 Ed Dept Rep 567).

Here, K.M. was found guilty of fighting and ignoring the instructions of school aides. She was suspended from April 2, 1997 through the end of the school year -- approximately two and one-half months. She was also provided home instruction and allowed to attend her prom and graduation. Petitioner provided no basis for her argument that the penalty was excessive. Based on the information before me, I do not find that the penalty imposed was so excessive that it would warrant substitution of my judgment for that of respondent.

Petitioner's allegation that respondent failed to respond to her information requests is a claim under the Freedom of Information Law (FOIL) (Public Officers Law ' 87, et seq.). The appropriate forum for addressing alleged FOIL violations, however, is the Supreme Court of the State of New York, not a ' 310 appeal to the Commissioner of Education (Appeal of Kushner, 36 Ed Dept Rep 261).

THE APPEAL IS DISMISSED.

END OF FILE