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Decision No. 14,817

Appeal of N.S., on behalf of her daughter S.S., from action of the Board of Education of the Somers Central School District regarding student discipline.

Decision No. 14,817

(November 5, 2002)

Raymond G. Kruse, PC, attorneys for petitioner, Raymond G. Kruse, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Somers Central School District ("respondent board") to suspend her daughter, S.S., for a portion of the 2000-2001 school year. The appeal must be dismissed.

During the 2000-2001 school year, S.S. was an eighth grade student at the Somers Middle School. On April 4, 2001, under circumstances about which the parties disagree, S.S. allowed a school counselor to read a composition from her notebook. The composition described a violent murder, which respondent found to refer directly to one of S.S."s teachers, and assessed to have been a serious threat. S.S. was suspended from school on the afternoon of April 4.

A superintendent"s hearing pursuant to Education Law "3214 was scheduled, and occurred on April 23, 25, 26, and 30. The hearing officer issued his findings of fact and recommendations on May 1, 2001. The hearing officer found S.S. guilty of threatening the health and/or safety of a teacher and engaging in inappropriate behavior in bringing the composition to the attention of the school counselor. The hearing officer recommended that S.S. be allowed to return to school the following day, May 2, 2001.

On May 2, the superintendent issued a decision adopting the findings of fact and recommendations of the hearing officer, and S.S. apparently returned to school on that date. Respondent board affirmed the superintendent"s decision at its meeting on August 6, 2001, and this appeal ensued.

Petitioner alleges a number of substantive and procedural irregularities, including a claim that the evidence introduced at the hearing does not support the finding of guilt. Among other things, petitioner also alleges that several policies of the board of education were violated and further claims that the penalty was inappropriate to the offense.

Respondent generally denies any wrongdoing and asserts that both the determination and penalty were in all respects appropriate.

The appeal must be dismissed as moot. 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 R.R. and K.R., 41 Ed Dept Rep ____, Decision No. 14,726; Appeal of K.M., 41 id. _____, Decision No. 14,699; Appeal of N.B., 40 id. _____, Decision No. 14,542). Since S.S. has already served her suspension, petitioner"s request for relief is moot (Appeal of R.R. and K.R., supra; 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).

Although I am dismissing this matter as moot, I must caution respondent on its scheduling of the disciplinary hearing. S.S. was sent home early on the afternoon of Wednesday, April 4, 2001. A notice to her parents indicated that her suspension was for five days, specifically April 5, 6, 17, 18, and 19 (April 9 through 13, and Monday, April 16 were school vacation days), and that her hearing was to be conducted at 9 a.m. on Friday, April 20. Thereafter, it appears that respondent"s superintendent unilaterally changed the date of the hearing to Monday, April 23, and further directed that S.S. should not be admitted to school until the conclusion of the hearing. The superintendent testified at the hearing: "[S.S.] was not to return until the conclusion of the hearing by my direction." Respondent has offered no justification for this order, and it is clear that S.S. should have been allowed to return to school on Friday, April 20. I strongly caution respondent to abide by the mandatory procedures set out in Education Law "3214.

I will not address the other matters raised by the parties because they are not within the jurisdiction of the Commissioner of Education.

THE APPEAL IS DISMISSED.

END OF FILE