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Decision No. 14,640

Appeal of D.H., on behalf of S.H., from action of the Board of Education of the Berlin Central School District regarding student discipline.

Decision No. 14,640

(August 31, 2001)

Whiteman, Osterman & Hanna, attorneys for respondent, Beth A. Bourassa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his daughter from school by the Board of Education of the Berlin Central School District ("respondent"). The appeal must be dismissed.

Petitioner"s daughter, S.H., attended tenth grade in respondent"s high school at the time of the events leading to this appeal. On October 30, 2000, S.H. was involved in an incident in her school"s cafeteria during which she allegedly threw a milk carton at another student, engaged in a physical altercation with that other student, used obscenities and allegedly physically and verbally assaulted the lunchroom monitor.

As a result of the incident, respondent"s principal suspended S.H. for five days. By letter dated November 1, 2000, respondent"s superintendent advised petitioner that in accordance with Education Law "3214 a hearing had been scheduled for November 6, 2000 to consider the suspension of his daughter for more than five days for disorderly conduct and conduct which endangered the safety, morals or welfare of others. The superintendent"s letter informed petitioner of S.H."s rights, including the right to cross-examine respondent"s witnesses, to present witnesses or other evidence on his daughter"s behalf and to be represented by counsel at the hearing. As a result of several scheduling conflicts, the hearing did not commence until November 30, 2000; it was reconvened and completed on December 13, 2000. The student and her parents were present at the hearing, which was tape-recorded.

By letter dated December 22, 2000, the superintendent notified petitioner that the hearing officer had found S.H. guilty of the charges. The superintendent also notified petitioner of his decision to accept the hearing officer"s recommendation that S.H. not be allowed to return to school until the first day following the holiday vacation " January 2, 2001. S.H. returned to school on January 2, 2001.

Petitioner appealed the superintendent"s decision to respondent at its January 16, 2001 meeting. By letter dated February 9, 2001, the president of respondent board notified petitioner that respondent had adopted the hearing officer"s findings of fact and affirmed the December 22, 2000 decision of its superintendent. This appeal ensued.

Petitioner contends that because school officials did not act to stop the students in the lunchroom from engaging in activity that S.H. found objectionable, it was "proper for a person [i.e., S.H.] to take matters in their own hands." With regard to the obscene language used by S.H., petitioner asserts that "the use of vulgar language is a part of life and I believe is accepted language in most modern dictionaries." Petitioner also contends that the allegation that S.H. assaulted the lunchroom monitor is not borne out by the testimony adduced at the hearing. Further, petitioner asserts that tutorial services were not provided by respondent to S.H. until 27 days after her suspension commenced, despite repeated requests for such services. Accordingly, petitioner requests that I find S.H."s suspension "to be inappropriate"; that he be given copies of the tape-recorded hearing; that the records relating to the incident be expunged; that the restrictions imposed by respondent on S.H."s activities at the school be removed; that S.H. "be provided extra tutorial services until such time as she is able to compete intellectually with her peer group"; and that all district personnel who may have hindered S.H."s education be disciplined.

Respondent asserts that petitioner"s claims, except the claim based on S.H."s suspension from school, are time barred; that the appeal is moot, except to the extent that it seeks expungement of S.H."s records; that the Commissioner lacks the authority to order disciplinary action against school personnel or to order tutorial services until such time as S.H. is able to compete academically with her peers; that the petition does not contain a clear and concise statement of petitioner"s claim; and, finally, that a tape-recording of the hearing has been provided to petitioner.

Except to the extent that petitioner seeks expungement of S.H."s records, this appeal must be dismissed as moot. The Commissioner of Education will only decide 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 N.B., 40 Ed Dept Rep ____, Decision No. 14,542; Appeal of N.C., 40 id. ___, Decision No. 14,522). The gravamen of petitioner"s request is that I find the discipline imposed by respondent to be "inappropriate." It is, however, undisputed that S.H. served the suspension and returned to school. Thus, to the extent that petitioner seeks to challenge the discipline imposed by respondent, the appeal must be dismissed as moot (Appeal of Camille S., 39 Ed Dept Rep 574, Decision No. 14,316). For the same reason, the appeal is also moot to the extent that petitioner requests relief on her claim that respondent has failed to provide S.H. with an adequate alternative education during, and after, the suspension period (Appeal of Harlan, 40 Ed Dept Rep ____, Decision No. 14,488; Appeal of Camille S., supra).

The appeal must also be dismissed on the merits, since I find substantial evidence in the record to support both the hearing officer"s findings of fact and the penalty imposed. A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133; Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241; Appeal of Uebel, 38 id. 375, Decision No. 14,058). A hearing officer may draw reasonable inferences if the record supports the inference (Board of Education of Monticello Central School District v. Commissioner of Education, supra; Appeal of Aldith L., supra; Appeal of Uebel, supra). In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Aldith L., supra; Appeal of Uebel, supra). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner"s judgment for that of the board (Appeal of Aldith L., supra; Appeal of Uebel, supra).

The record reflects that S.H. threw a milk carton at another student, engaged in a physical altercation with that student, used profanity and engaged in some type of unwarranted physical contact and verbal abuse against a school employee. Accordingly, the finding of guilt and the penalty imposed are amply justified, and I will not substitute my judgment for respondent"s.

I also decline to take any disciplinary action against school personnel who may have "hindered [S.H."s] education," as requested by petitioner. The Commissioner of Education has no authority to order disciplinary action against unnamed school personnel. It is the board of education that has authority to take disciplinary action against a school district employee (Appeal of Middleton, 40 Ed Dept Rep ___, Decision No. 14,431). Furthermore, none of the parties alleged to have hindered S.H."s education have been joined in this appeal. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Anslow, 40 Ed Dept Rep ___, Decision No. 14,498; Appeal of Heller, 38 id. 335, Decision No. 14,048). An individual must be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, supra). Petitioner seeks the discipline of certain unnamed district employees, whose rights would be adversely affected by a determination in petitioner"s favor. Accordingly, I will not consider imposing disciplinary action on any school personnel in this appeal.

While I am dismissing the appeal, I am constrained to admonish respondent regarding its apparent failure to provide adequate tutorial services to S.H. during the period of her suspension. In her affidavit, counsel for respondent concedes that "there was some delay in providing a tutor for [S.H.] during her suspension." Counsel asserts that she misinterpreted the compulsory education law, and advised respondent district that it was not required to provide petitioner"s daughter with tutorial services. Counsel states that tutoring services were rendered once she realized her mistake and advised respondent accordingly. Significantly, counsel asserts that the district is now fully aware of its obligations and "will take the necessary steps to ensure prompt tutoring arrangements whenever a student of compulsory school age is suspended." It is imperative that respondent be mindful of its legal obligation under Education Law ""3205(1) and 3214(3)(e) to provide prompt alternative education in the future.

In light of this disposition, I decline to address the parties" remaining contentions.

THE APPEAL IS DISMISSED.

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