Decision No. 13,978

(August 5, 1998)

CATE, Acting Commissioner.--Petitioner challenges the two-day suspension of his son, Justin, and requests that the Board of Education of the Scarsdale Union Free School District ("respondent") be directed to expunge the suspension from Justin's record. The appeal must be dismissed.

Justin was a seventh grade student enrolled in respondent's schools during the 1996-97 school year. On Friday, May 2, 1997, respondent's middle school vice principal, Ms. Luisi, telephoned petitioner's wife and informed her that Justin was being suspended for the remainder of the day and the following Monday, May 5, 1997. The suspension was imposed because of an alleged incident of sexual harassment by Justin involving two seventh grade girls.

Petitioner and his wife met with Ms. Luisi and the middle school principal, Mr. McDermott, on Monday morning May 5 to discuss the suspension. Petitioner requested an opportunity to question the two complaining students, but was refused. Petitioner's request to lift Justin's suspension was also refused. Petitioner wrote a letter of appeal to respondent's superintendent that same day. Petitioner commenced this appeal on May 30, 1997.

Petitioner contends that respondent violated Education Law "3214 and "100.2(1) of the Commissioner's Regulations by failing to provide written notice of the suspension, by not allowing petitioner to question the complaining witnesses and by allowing the vice principal to suspend Justin. Petitioner argues that Justin was deprived of his due process rights and that the penalty imposed was grossly disproportionate to the offense. Petitioner also contends that respondent failed to provide alternative education during Justin's suspension. Petitioner asks that the suspension be expunged from Justin's records and that I issue a directive to respondent concerning the procedures to be followed under Education Law "3214.

Respondent contends that the appeal should be dismissed as moot because no record of the suspension exists. Respondent also contends that the appeal should be dismissed for failure to exhaust administrative remedies. Additionally, respondent argues that the Education Law and Commissioner's Regulations should not be interpreted to compel young victims of sexual harassment to appear before the alleged harasser and his or her parents for questioning. Respondent further contends that the principal suspended Justin and provided Justin with assignments from his teachers during the suspension.

The appeal must be dismissed as moot. It is well settled that the Commissioner of Education will determine only matters in actual controversy and will not ordinarily render a decision on a state of facts that no longer exists or which subsequent events have laid to rest (Appeal of a Student with a Disability, 36 Ed Dept Rep 229; Appeal of Berheide, 35 id. 412; Appeal of Brewer, 35 id. 196; Appeal of Healy, 34 id. 611). In this appeal, petitioner asks for expungement of Justin's record. Respondent contends there is no record of the suspension in Justin's file to expunge. The only other relief requested by petitioner is already articulated in the Education Law and Commissioner's Regulations. Therefore, the appeal is dismissed as moot.

In addition, petitioner has failed to exhaust administrative remedies by failing to appeal Justin's suspension to respondent. The record shows that petitioner appealed the suspension to respondent's superintendent by letter dated May 5, 1997. Petitioner contends that he never received a response to this letter. Respondent, however, submits a copy of the superintendent's response, dated May 14, 1997. In any event, there is no evidence that petitioner pursued an appeal to respondent. Pursuant to Education Law "3214 (3)(e), petitioner must appeal to the board of education prior to filing an appeal with the Commissioner of Education (Appeal of Ahern, 22 Ed Dept Rep 123; Appeal of Luppino, et al., 19 id. 12). Therefore, even if the appeal were not moot, it would be dismissed for failure to exhaust administrative remedies.

Although the appeal is dismissed as procedurally defective, I am compelled to comment on respondent's actions. While 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 nonetheless required to impose such discipline with fundamental fairness (Appeal of Allert, 32 Ed Dept Rep 242; Appeal of Blish, 32 id. 171; Appeal of Forster, 31 id. 443; Appeal of Danison, 31 id. 169). In the case of short-term suspensions under "3214(3)(b) where a principal suspends a student for five days or less, the minimum standard of fundamental fairness has been partially codified by the adoption of 8 NYCRR "100.2(l)(4). That regulation provides in pertinent part:

The purpose of "100.2(l)(4) is to require that parents of a student who is suspended for five days or less are made aware of the statutory right provided in Education Law "3214(3)(b) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has the authority to reduce or terminate the suspension. This procedure affords the principal the opportunity to decide whether his original decision to suspend was correct or should be modified. It is insufficient to provide merely an opportunity to speak to the principal without the complaining witness present, or an opportunity to speak to the complaining witness without the principal present (Appeal of Pinckney, 37 Ed Dept Rep 284; Appeal of Jones, 35 id. 1). The opportunity to question the complaining witnesses was not presented here and while I find respondent's reasoning on this matter somewhat persuasive I see no legal basis to relieve the district of its obligation to provide students accused of misconduct with the minimal due process required by Education Law "3214(3) and 8 NYCRR "100.2(l)(4).

Additionally, respondent failed to provide written notification of the grounds for suspension as required by "100.2(l)(4). Respondent appears to argue that a student is better off without written notification because there will be no subsequent record of the incident in the student's file. Section 100.2(1)(4) requires that the notice of suspension must be in writing. Respondent should ensure that it provides such written notice of suspensions in the future.

In sum, while I have dismissed this appeal, I admonish respondent for its failure to comply with Education Law "3214 and 8 NYCRR "100.2(l)(4). Respondent should review and revise its disciplinary procedures to bring them into compliance with the statute and regulation.

THE APPEAL IS DISMISSED.

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