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Decision No. 14,794

Appeal of N.C., on behalf of his son, J.C., from action of the Board of Education of the Mount Sinai Union Free School District, regarding student discipline and dismissal from athletic team.

Decision No. 14,794

(August 23, 2002)

Pamela Anne Tucker, Esq., attorney for petitioner

Kevin A. Seaman, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mount Sinai Union Free School District ("respondent") to uphold the imposition against his son, J.C., of a three-day in-school suspension and dismissal from the varsity wrestling team. The appeal must be dismissed.

J.C. was a junior at Mount Sinai High School, and had been a member of the varsity wrestling team for four years. On January 19, 2002, the team was engaged in a takedown ladder drill. J.C. was wrestling with another student ("N."), who succeeded in taking down J.C. There is a factual dispute as to what happened next.

J.C. states that N. did not get off him, and J.C. pushed him. When N. still did not get up, J.C. again pushed N. with his other hand and inadvertently grazed N."s nose. The varsity coach, on the other hand, states that J.C. was upset by the takedown and swung at N. but missed. J.C. then allegedly hit N. with his other hand in a closed fist.

There is no dispute that, after the physical contact, N."s nose began to bleed. N. was taken to the local hospital, and examination established that his nose was broken. The varsity coach told J.C. to leave the gym, and subsequently called J.C."s parents to arrange a meeting for Monday, January 21, 2002, to discuss the incident. At this meeting, the coach told petitioner that J.C."s actions were inexcusable and that J.C. was dismissed from the wrestling team for the remainder of the season. Petitioner then discussed the incident and the proposed penalty with the high school principal, assistant principal, athletic director and superintendent. The coach also states that, after meeting with the principal, J.C. walked into practice and talked to another coach, referring out loud to the varsity wrestling coach as an "asshole." The superintendent sent petitioner a letter dated January 23, 2002, assessing a penalty of three days in-school suspension for insubordination and endangering the health and safety of himself and others by striking another student during wrestling practice. The in-school suspension was served on January 23 " 25, 2002.

By letter dated January 28, 2002, petitioner appealed the matter to respondent. The record indicates that petitioner"s appeal to respondent included both his son"s dismissal from the wrestling team and in-school suspension. Respondent heard petitioner"s appeal on February 12, 2002. The superintendent sent a letter to petitioner on behalf of respondent on February 14, 2002, explaining that respondent upheld the decision of the wrestling coach, as supported by the high school principal, athletic director and superintendent, to remove J.C. from the wrestling team for the remainder of the season. Respondent had determined that there was ample support in the district"s Code of Conduct, Athletic Rules and Regulations, and Athletes" Contract for the coach"s decision, and the dismissal was not arbitrary or capricious. Although respondent believed that the matter was "unfortunate," respondent gave great deference to the coach, who was charged with the responsibility of monitoring the wrestling program, and determined that the coach had not abused his prerogative to ensure that the program is maintained in an orderly and responsible manner. The superintendent noted in his letter that the dismissal from the wrestling team for the 2001-2002 season had no impact on J.C."s participation for the 2002-2003 season. This appeal ensued.

Petitioner contends that J.C. was denied proper due process under the district"s Code of Conduct. Petitioner claims that the district failed to conduct an investigation of the incident as required by the Code of Conduct. No one questioned any of the other students who were present to see what the students had witnessed. Petitioner further contends that the district did not take into account J.C."s previous unblemished disciplinary record when imposing the in-school suspension and team dismissal, also in violation of the Code of Conduct. Petitioner requests that I order J.C."s reinstatement to the wrestling team and expungement of the three-day in-school suspension.

Respondent contends that it afforded all requisite due process to J.C., and that its decision is not unreasonable or arbitrary. Respondent also raises two procedural objections: 1) that the petition is untimely insofar as it seeks reinstatement to the wrestling team, because the appeal was commenced on March 8, 2002, more than 30 days after the January 21 decision to remove J.C. from the team; and 2) that the request for reinstatement is moot because the 2001-2002 wrestling season ended in mid-February. I will address the procedural objections first.

I reject respondent"s contention that the petition is untimely with respect to petitioner"s request for reinstatement of his son to the wrestling team. It is clear from the record that petitioner appealed his son"s dismissal from the team to respondent board and respondent upheld the dismissal on February 14, 2002. Because this appeal was commenced within 30 days of petitioner"s receipt of respondent"s February 14, 2002 decision, I will not dismiss the appeal of this issue as untimely.

However, I agree that the appeal of the dismissal from the wrestling team and request for reinstatement are now moot. The wrestling season ended in mid-February. Although petitioner contends that there were post-season competitions that were significant to his son because colleges sent scouts to review the competitors, petitioner did not seek interim relief and there is no information in the record to indicate that any such competitions are still taking place. The dismissal for the 2001-2002 season does not affect J.C."s opportunity to participate on the varsity wrestling team for the 2002-2003 season. The Commissioner 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 R.R. and K.R., 41 Ed Dept Rep ___, Decision No. 14,726; Appeal of Huber, et al., 41 id. ___, Decision No. 14,676). The appeal is not moot, however, insofar as petitioner seeks expungement of the disciplinary suspension from his son"s records (Appeal of K.M., 41 Ed Dept Rep ___, Decision No. 14,699; Appeals of M.S. and M.D., 41 id. ___, Decision No. 14,687).

The appeal must also be dismissed on the merits. Petitioner's claim that respondent did not afford his son appropriate due process before imposing discipline is unfounded. Petitioner argues that the district"s Code of Conduct required an investigation of the incident, including statements from other student witnesses, and consideration of J.C."s prior unblemished disciplinary record prior to respondent's imposition of in-school suspension and suspension from extracurricular activities. Petitioner submits an affidavit from a student witness to the incident, who states that the blow to N."s nose was an accident and that J.C. did not hit N. with a closed fist. Petitioner also submits two affidavits, from the assistant wrestling coach and a prior varsity coach, who attest to J.C."s character and state that they do not believe J.C. would have intentionally hurt another student.

I find, however, that respondent afforded all required due process to petitioner and his son, and did not violate the mandates of its Code of Conduct. In-school suspensions and the suspension of student privileges to participate in extracurricular activities and events are not governed by Education Law "3214, which sets forth, among other things, a student"s right to a hearing prior to the imposition of an out-of-school suspension in excess of five school days. Procedures governing in-school suspensions and the suspension of extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of Denis, 40 Ed Dept Rep 306, Decision No. 14,487; Appeal of Michael J.A., 39 id. 501, Decision No. 14,293). Petitioner"s contention that his son was improperly found guilty without a hearing or the opportunity to present witnesses on his behalf is misplaced, because there is no due process right to a hearing for an in-school suspension or suspension from extracurricular activities.

I similarly do not find a violation of respondent"s obligations under the district"s Code of Conduct. The Code of Conduct states that:

The amount of due process a student is entitled to receive before a penalty is imposed depends on the penalty being imposed. In all cases, regardless of the penalty imposed, the school personnel authorized to impose the penalty must inform the student of the alleged misconduct and must investigate, to the extent necessary, the facts surrounding the alleged misconduct. All students will have the opportunity to present their version of the facts to the school personnel imposing the disciplinary penalty in connection with the imposition of the penalty.

There is no dispute that, prior to imposition of the in-school suspension and dismissal from the wrestling team, petitioner and his son discussed the incident and proposed penalty with the varsity wrestling coach, the high school principal and assistant principal, the athletic director and the superintendent. Although petitioner further claims that respondent failed to carry out an investigation, or to interview the other students who were present during the incident, the record reflects that the varsity wrestling coach personally witnessed the incident and J.C. had multiple opportunities to present his characterization of the incident. There is nothing in the record to indicate that further investigation would have divulged any version of the incident that was not already presented to and considered by respondent. Although petitioner additionally claims that respondent did not consider J.C."s prior unblemished disciplinary record, respondent contends that the student"s misconduct would have warranted a three-day out-of-school suspension, but the penalty was reduced to in-school suspension to accommodate the student"s exam schedule.

After carefully reviewing the record, I find that respondent afforded petitioner and his son with all of the due process required, and did not violate its own procedures in the Code of Conduct. I further note that the finding that J.C. struck another student and endangered the safety and health of another student is not arbitrary and capricious, in view of the facts revealed by this record. Accordingly, I decline to substitute my judgment for that of respondent.

THE APPEAL IS DISMISSED.

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