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Decision No. 14,101

Appeal of JUNE D., on behalf of Brian D., from action of the Board of Education of the City School District of the City of Glens Falls regarding student discipline.

Decision No. 14,101

(March 31, 1999)

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin D. Auffredou, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Glens Falls ("respondent") to suspend her son, Brian, for possession and use of a controlled substance. The appeal must be dismissed.

In the spring of 1998, Brian was a senior at Glens Falls High School and attended a Board of Cooperative Educational Services ("BOCES") electronics course at the Southern Adirondack Educational Center. On March 10, 1998 the Glens Falls High School principal, William H. Kennedy, and BOCES principal, Donald P. McCabe, notified petitioner that Brian was being suspended through March 17, 1998 for possession and use of marijuana while attending BOCES. Mr. McCabe further indicated that the New York State Police ("State Police") had been called in to investigate the incident and had issued a summons for Brian to appear in court.

On March 11, 1998, petitioner and her husband brought Brian to Glens Falls Hospital to be tested for evidence of drug use. Respondent's superintendent, Thomas F. McGowan, held a disciplinary hearing pursuant to Education Law "3214 on March 16, 1998. By letter dated that same day, Mr. McGowan informed petitioner and her husband that Brian would be suspended for an additional 30 days and would be eligible to return to school on May 4, 1998. On April 6, 1998, a hearing was conducted by respondent, which upheld the superintendent's decision. This appeal ensued.

Petitioner contends that Brian did not smoke marijuana on March 10, 1998 and submits the results of the hospital drug test to support that contention. She alleges that Brian was merely standing with another student who "thrust" a pipe that allegedly contained marijuana at Brian when a school monitor approached and Brian took it reflexively. Petitioner claims that Brian denied smoking marijuana at the disciplinary hearing, that the pipe was empty and that there was no determination that it contained marijuana. Petitioner further contends that a Washington County Court judge dismissed the case against Brian on April 8, 1998 and implies that this dismissal supports Brian's innocence. Petitioner requests that the suspensions be rescinded and Brian's records be expunged of any reference to those suspensions. Petitioner further asks that respondent notify all persons who may have learned that Brian was suspended on the grounds of drug use of the inaccuracy of that determination. Finally, petitioner requests that Brian be allowed to graduate on time with his class.

Respondent contends that Brian initially admitted, but later denied, smoking marijuana, that Brian was observed by a school monitor holding the pipe near his mouth, and that the State Police informed the school monitor and Principal McCabe that there was marijuana in the pipe. Respondent asserts that the outcome of the State Police summons is irrelevant to its determination and that the drug test results submitted by petitioner are not definitive and were not independently explained or verified at the disciplinary hearing. Respondent argues that its determination was based on substantial evidence after a full and fair hearing and was not arbitrary or capricious.

Initially, I must address a procedural issue. According to information submitted by respondent, it appears that Brian served his suspensions, returned to school, and may have graduated. Therefore, petitioner's request to have the suspensions rescinded is moot. It is well settled that the Commissioner will only consider 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 Schuler, 37 Ed Dept Rep 512; Appeal of Lawson, 36 id. 450). The only remaining issues are whether Brian's records should be expunged and other parties so notified.

Education Law "3214(3)(a)(1) authorizes a school district to suspend "a pupil who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others." The 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 Cynthia and Robert W., et al., 37 Ed Dept Rep 437; Appeal of Catherine B., 37 id. 34; Appeal of A.B., 36 id. 155). In support of her argument, petitioner submits a copy of the results of a drug test administered to Brian at the Glens Falls Hospital as well as the unsworn statement of a hospital employee attesting to the security measures used when obtaining and conveying the specimen tested. No information is given as to the accuracy of the test and the report conspicuously indicates that the "specimen was received without chain of custody and may not have been handled as a legal specimen" and that the test results "should be used for medical purposes only and not for any legal or employment evaluative purposes."

Respondent submits a copy of its drug and alcohol policy, which states that a student will be disciplined for use or possession of alcohol and/or drugs or drug paraphernalia (emphasis added). Respondent further submits an affidavit of the school monitor who observed Brian with the pipe, as well as a copy of the State Police supporting deposition from the same individual. According to this individual, he observed Brian and another student for five to ten seconds before they noticed him. During that time he states that he saw Brian and the other student pass the pipe between them, that he observed the pipe in the other student's mouth as Brian lit it, and that he smelled the odor of burning marijuana. He then escorted the students to Principal McCabe's office and states that both students admitted to smoking marijuana. The record contains an affidavit from Principal McCabe which also states that Brian admitted to smoking marijuana and that the State Police examined the pipe and stated that it contained marijuana. The record also contains an affidavit from Superintendent McGowan who states that during the disciplinary hearing Brian admitted that he had used and/or possessed a controlled substance at BOCES on March 10, 1998, but changed his admission to a denial as the hearing progressed.

Based on the foregoing, I find that respondent's determination to suspend Brian for violating its drug and alcohol policy to be based on competent and substantial evidence. Accordingly, there is no basis to overturn the determination or grant the additional relief requested by petitioner.

THE APPEAL IS DISMISSED.

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