Appeal of E.F., on behalf of her son S.T., from action of the Board of Education of the Starpoint Central School District regarding student discipline.

Decision No. 14,762

(July 24, 2002)

Muscato, DiMillo & Vona, LLP, attorneys for petitioner, A. Angelo DiMillo, Esq., of counsel

Norton/Radin/Hoover/Freedman, attorneys for respondent, Bernard Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the disciplinary penalty imposed upon her son S.T. by the Board of Education of the Starpoint Central School District ("respondent"). The appeal must be dismissed.

On Monday, October 15, 2001, school officials at respondent"s high school discovered that vandalism had occurred at the high school over the weekend. After school officials broadcasted an announcement over the school"s public address system concerning the incident, petitioner"s son, S.T., and another student came forward and admitted their involvement.

By letter dated October 23, 2001, S.T. was charged with trespassing and damaging school district property and engaging in vandalism that included setting fire to various items on school district property. At a superintendent"s hearing held October 29, 2001, testimony established that the vandalism caused an estimated $65,000 in damage to school property. A portable lavatory was burned, a plastic athletic storage bin was damaged from the heat of the fire, a bench was thrown through a school window and athletic fields were damaged by tire tracks. The district introduced a written statement, obtained by the high school principal, in which S.T. admitted that he and a group of students went to the school on Saturday night to set fire to the portable lavatory. S.T. also testified at the hearing that he had been at a party earlier that evening and had consumed more than five beers, and that at some point during the evening, a plan was devised to vandalize school property. Although S.T. minimized his involvement in setting fire to the portable lavatory, he was present when the vandalism occurred and did nothing to stop it. S.T. also admitted returning to the school for a second time that night when he and other students tipped over soccer nets and bleachers. It was during this second round of vandalism that a bench was thrown through a school window.

By decision dated October 31, 2001, the hearing officer determined that there was substantial and competent evidence to sustain the charges and recommended S.T."s suspension from school through January 2002, and exclusion from extracurricular activities for the remainder of the 2001-2002 school year. By letter dated November 2, 2001, respondent"s superintendent informed petitioner that he was suspending S.T. for the remainder of the 2001-2002 school year and excluding him from extracurricular activities for the remainder of his high school career. By letter dated December 3, 2001, petitioner appealed the superintendent"s determination to respondent. Petitioner also submitted a number of letters from teachers, coaches and other school personnel, each of whom attested to S.T."s good character. By letter dated January 29, 2002, respondent"s superintendent informed petitioner that respondent had sustained the superintendent"s determination. This appeal ensued.

Petitioner alleges that the penalty imposed by respondent is unduly harsh and that respondent failed to consider her son"s "exemplary background and good character." Respondent contends that the penalty imposed was appropriate given the seriousness of the incident.

Before turning to the merits of the appeal, I will first address a procedural issue. Petitioner"s reply contains additional allegations not set forth in the petition. It also includes new exhibits which petitioner could have included with her petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Taylor, 39 Ed Dept Rep 712, Decision No. 14,357). Thus, I have not considered those portions of petitioner"s reply that contain new information or materials that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal is moot to the extent that petitioner challenges her son"s suspension for the remainder of the 2001-2002 school year. The Commissioner will only decide 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 K.M., 41 Ed Dept Rep ____, Decision No. 14,699; Appeal of N.B., 40 id. ____, Decision No. 14,542; Appeal of N.C., 40 id. ____, Decision No. 14,522). Petitioner requests that her son be permitted to return to school but does not seek expungement of S.T."s records. Since the 2001-2002 school year has ended and S.T. has served the suspension, petitioner"s request for relief is moot (Appeal of K.M., supra; Appeal of D.C., 41 Ed Dept Rep _____, Decision No. 14,684; Appeal of Camille S., 39 id. 574, Decision No. 14,316).

I do not find S.T."s suspension from extracurricular activities to be excessive. Education Law "3214 does not apply to a suspension from extracurricular activities (Appeal of Catherine B., 37 Ed Dept Rep 34, Decision No. 13,797; Appeal of Douglas and Judy H., et al., 36 id. 224, Decision No. 13,707). A board of education has very broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it is shown that the board has abused its discretion, its policy will be upheld (Appeal of Catherine B., supra; Appeal of Douglas and Judy H., supra). Given the seriousness of S.T."s conduct, I do not find that respondent abused its discretion by excluding S.T., who was enrolled as a junior during the 2001-2002 school year, from participating in extracurricular activities for the remainder of his high school career. Although neither party has submitted a copy of respondent"s extracurricular activity policy, petitioner does not allege that the suspension violates respondent"s policy. Under these circumstances, I find no basis to disturb the penalty imposed by respondent.

Finally, I note that respondent"s superintendent offered S.T. the option of submitting a written plan outlining grounds for mitigating S.T."s punishment. Although the deadline for submitting such a plan has passed, I urge S.T. to explore whether respondent would consider entertaining such a plan to reduce the length of S.T."s exclusion from extracurricular activities.

THE APPEAL IS DISMISSED.

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