Decision No. 14,434

(August 14, 2000)

CATE, Acting Commissioner.--Petitioner appeals the suspension and transfer of his daughter, Kristen, by the Board of Education of the East Ramapo Central School District ("respondent"). The appeal must be dismissed.

At the bus stop on the morning of Tuesday, March 23, 1999, Kristen lit two matches in an unsuccessful attempt to burn a letter. She also showed a friend a kitchen knife with an 8-inch blade, which she proceeded to bring to school. Petitioner alleges that Kristen attempted to see her guidance counselor that morning, but was unable to. Apparently, she submitted a note requesting help "before she killed someone." During her third period lunch break, she showed the knife handle to at least one other student. Petitioner asserts that Kristen became frightened and during fifth period, hid the knife behind a toilet in a school bathroom. After she informed other students about the hidden knife, they alerted security who recovered the knife from the bathroom.

Initially, Kristen asserted that she had found the knife and denied that she had brought it to school. Over the course of the day and after interviewing several students, Assistant Principal Deborah Hill concluded that Kristen had brought the knife to school. She suspended Kristen for three days for lighting matches at the bus stop and informed petitioner that a hearing and investigation would be held regarding the knife.

Later that evening, Kristen admitted to petitioner that she had brought the knife to school and wrote a letter of apology which she presented the next morning at a meeting with Ms. Hill, Principal Albert Gyuricza, and her guidance counselor. At that meeting, Mr. Gyuricza extended the suspension to five days, pending a hearing. By letter dated March 24, 1999, Mr. Gyuricza notified petitioner of Kristen's five-day suspension for possessing a weapon (the knife) at the bus stop and at school, and possessing a bottle of pills, a book of matches, a yo-yo and an electronic game, none of which are permitted in school. The principal also notified petitioner of his right to request an informal conference under Education Law "3214(3)(d).

At the hearing held on March 30, 1999, Kristen, who was the only witness, admitted the charges against her. The hearing officer commended Kristen's honesty in admitting the charges, but also stated that "the safety violations and the school district's zero tolerance policy for weapons possession warrant a severe penalty." He recommended that Kristen be removed from Chestnut Ridge Junior High School and transferred to Kakiat Junior High School. He also recommended Kristen's exclusion from extracurricular activities and placement on probation. Superintendent Jason P. Friedman adopted the hearing officer's recommendation. Petitioner then obtained counsel, who requested that the suspension hearing be re-opened "solely with regard to the Penalty [sic] phase, based upon the fact that the student was not represented by counsel." Kristen was allowed to remain at Chestnut Ridge pending the second hearing.

At that hearing on April 14, 1999, the same hearing officer presided. Mr. Gyuricza testified for respondent and petitioner and Kristen testified on her behalf. There was a more extensive discussion relating to Kristen's emotional state, with petitioner arguing that the five-day suspension was sufficient punishment given Kristen's clean disciplinary record, and Kristen testifying that she wrote on her guidance slip that she might kill someone because a friend told her if she did, she would get a quicker response. The hearing officer stated that he considered suspending Kristen for the remainder of the year in light of the district's stringent policy on weapons possession in school, but that the principal did not feel that this would be in Kristen's best interest. He then made the same recommendations as he had at the first hearing, namely, that "the most appropriate manner in which to deal with the situation is to transfer KRISTEN to Kakiat Junior High School." He also recommended a full psychoeducational battery of tests. Superintendent Friedman adopted what he called "the penalty recommendations" on April 16.

On April 19, 1999, petitioner sought a preliminary injunction in Rockland County Supreme Court arguing that an involuntary transfer and compulsory counseling are not authorized penalties for student misconduct and that respondent failed to comply with Education Law "3214(5). Judge Murphy dismissed the motion on June 8, 1999, for failure to exhaust administrative remedies. Petitioner subsequently appealed to respondent on June 14, 1999. On June 29, 1999, respondent upheld the superintendent's determination. This appeal ensued. Petitioner's request for interim relief was granted on August 11, 1999.

As in his action in Supreme Court, petitioner contends that an involuntary transfer and compulsory counseling are not authorized penalties for student misconduct under the Education Law. He requests that the transfer order be overturned.

Respondent contends that the April 14 hearing complied with Education Law "3214(5) in that petitioner was given a full and fair hearing at which he was represented by counsel and had the opportunity to present testimony and evidence and cross-examine respondent's witness.

The appeal must be dismissed as moot. The Commissioner of Education 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 a Student with a Disability, 38 Ed Dept Rep 91, Decision No. 13,990; Appeal of Schuler, 37 id. 512, Decision No. 13,915). Petitioner requests that Kristen not be transferred to Kakiat. By granting the interim order, I have already ruled on the relief sought (Appeal of L.M., 36 Ed Dept Rep 56, Decision No. 13,654). Moreover, respondent closed Kakiat as of the end of the 1998-1999 school year, and, according to its answer, Kristen and other entering eighth grade students were assigned to Pomona Junior High School. Accordingly, the appeal is dismissed as moot.

In light of this disposition, I decline to address the parties' other arguments. However, I am compelled to remind respondent that a transfer is not an authorized penalty in student discipline cases under Education Law "3214 (Appeal of Reeves, 37 Ed Dept Rep 271, Decision No. 13,857; Appeal of a Student with a Disability, 36 id. 273, Decision No. 13,723; Appeal of a Student with a Disability, 34 id. 556, Decision No. 13,408. In other words, a transfer as a direct result of a disciplinary hearing is unallowable.

In addition, although petitioner did not raise the issue of notice, section 3214(3)(b) of the Education Law allows for a suspension of up to five days to be imposed by a school principal. That section provides that:

Although petitioner met with the principal the day after the incident, Mr. Gyuricza provided petitioner with written notification only after that meeting. Furthermore, the record indicates that Assistant Principal Hill initially suspended Kristen. The statute clearly provides that the board of education may delegate the authority to suspend a pupil only to the building principal. The statute authorizes no further delegation of that authority (Ross v. Desare, 500 F.Supp. 928 [S.D.N.Y. 1977]; Appeal of Knapp, 39 Ed Dept Rep ___, Decision No. 14,282; Appeal of Tooley, 39 id. 334, Decision No. 14,253).

Finally, a school district cannot condition a student's return to school on participation in counseling (Appeal of Cynthia and Robert W., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Alexander, 36 id. 160, Decision No. 13,689).

Respondent is admonished to review and revise its suspension procedures to ensure future compliance with Education Law "3214 and its implementing regulations.

THE APPEAL IS DISMISSED.

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