Appeal of B.K. and R.K., on behalf of their son D.K., from action of the Board of Education of the City School District of the City of Port Jervis regarding student discipline.

Decision No. 15,146

(December 1, 2004)

Cuddeback & Onofry, attorneys for respondent, Robert A. Onofry, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the decision of the Board of Education of the City School District of the City of Port Jervis ("respondent") to suspend their son, D.K., from school. The appeal must be dismissed.

D.K. was an 11th grade student at respondent�s high school during the 2003-2004 school year. On September 25, 2003, a school monitor observed D.K. smoking what he thought was marijuana in a school stairway. The monitor called the Assistant Principal to come to the stairway and D.K. ran out a nearby exit door. D.K. returned and was escorted to the Assistant Principal�s office. D.K. admitted that he smoked a cigarette and allowed the Assistant Principal to search his jacket, but refused numerous requests by the Assistant Principal to submit to a search of his person. The Assistant Principal called the police, and D.K. left the office. As D.K. left, he came into contact with the monitor, who was standing in front of the office door, causing him to lose his balance. A short time later D.K. returned and offered to be searched. The police arrived thereafter and harassment charges were filed against D.K.

By notice dated September 24, 2003, D.K. was charged with "Conduct which endangers the safety, morals, health or welfare of others. Supporting details: Alleged possession of marijuana" and was suspended for five days.

By notice dated October 1, 2003, petitioners were notified of a superintendent�s hearing, which was held on October 7, 2003 before a hearing officer designated by the superintendent. The hearing officer, by decision dated October 10, 2003, found that on September 25, D.K. had been smoking a cigarette on school property during school hours, had left school twice without permission and had physical contact with the monitor. He therefore found D.K. guilty of "endangering the health, welfare, and morals of others on school property during a school day." After reviewing D.K.�s anecdotal record, the hearing officer recommended that D.K. be suspended for the remainder of the 2003-2004 school year and that he be placed in an alternative education setting. By letter dated October 21, 2003, respondent�s superintendent accepted the hearing officer�s recommendation. By letter dated November 5, 2003, respondent upheld the superintendent�s decision and placed D.K. in the Alternative Education Program for the balance of the school year. This appeal ensued.

Petitioners allege that the hearing officer misstated the nature of the charges and that the report and recommendation do not accurately reflect the proceeding. Petitioners argue that the hearing officer�s determination fails to reflect that the original charge of smoking marijuana was unfounded and that they were not given notice of the charge of smoking a cigarette or leaving school grounds without permission. Petitioners also argue that the penalty is excessive. They request an investigation into the alleged inequity of the penalty, reinstatement to school and additional tutoring to help D.K. catch up on schoolwork.

Respondent contends the appeal should be dismissed as untimely. Respondent also asserts that its decision to discipline D.K. was based on substantial evidence and that the penalty was appropriate.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O�Brien, 44 Ed Dept Rep __, Decision No. 15,092; Appeal of Recore, 42 id. 283, Decision No. 14,856). Petitioners were informed of respondent�s determination by letter dated November 5, 2004. Petitioners initially served the petition on respondent on December 5, 2003, within the 30-day period. The petition was received in my Office of Counsel without the Notice required by �275.11 of the Commissioner�s Regulations. By letter dated December 23, 2003, my Office of Counsel returned the petition to petitioners and allowed them two weeks from the date of that letter to correct their mistake and re-serve the petition. On January 6, 2004, the corrected petition was re-served on respondent. Accordingly, I find the petition timely.

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 exist or which subsequent events have laid to rest (Appeal of Cordisco, 44 Ed Dept Rep __, Decision No. 15,089; Appeal of Kushner, 43 id. ___, Decision No. 15,040; Appeal of Reynolds, 42 id. 231, Decision No. 14,834). D.K. was suspended for the remainder of the 2003-2004 school year. That school year has ended and D.K.�s penalty has been served.

I further find that petitioners were given adequate notice of all the charges against D.K. The superintendent�s hearing notice pursuant to Education Law �3214(3) alleged that D.K. engaged in behavior "which endangers the safety, morals, health or welfare of others." Beneath this charge, under a sub-heading of "Supporting details", is a comprehensive account of D.K�s actions on the date in question, including his attempts to flee and the allegation that he was smoking "something resembling a cigarette."

Education Law �3214(3)(a) authorizes a school district to suspend a "pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others."  Respondent�s code of conduct clearly states that students are subject to disciplinary action when they "[e]ngage in any conduct that endangers the safety, morals, health or welfare of others," including but not limited to smoking cigarettes. The 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 (Matter of Bd. of Educ., Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Matter of Bd. of Educ., City School Dist. of the City of New York v. Mills, et al., 293 AD2d 37; Appeal of D.G., 43 Ed Dept Rep __, Decision No. 15,001).

In this case, D.K. had admitted to smoking cigarettes on school property during school hours and repeatedly refused the Assistant Principal�s request to search him. The hearing officer also credited the testimony of the Assistant Principal and monitor regarding D.K. �s physical contact with the monitor, D.K.�s refusal to cooperate and attempts to leave school property without permission. With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of T.R. and M.D., 43 Ed Dept Rep __, Decision No. 15,036; Appeal of K.M., 41 id. 318, Decision No. 14,699). I find no basis to substitute my judgment in this case.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of D.G., supra; Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689). 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 Cynthia and Robert W., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Alexander, supra; Appeal of Forestiero, 34 Ed Dept Rep 592, Decision No. 13,419). In support of the penalty imposed, respondent emphasizes D.K.�s conduct (i.e., smoking, flight from the building and physical altercation) and his anecdotal record. A review of the record indicates that most of D.K.�s offenses are tardiness. However, I must agree with respondent that D.K.�s conduct in school became more problematic during the 2002-2003 school year with incidents such as hitting other classmates with objects, forging passes and using inappropriate language toward teachers. Based therefore upon the totality of the record before me and the seriousness of D.K.�s conduct, I will not overturn the penalty imposed as excessive.

Finally, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Laurie, 42 Ed Dept Rep 313, Decision No. 14,867; Appeal of Allen, 39 Ed Dept Rep 528, Decision No. 14,300; Appeal of Van Zile and Crowell, 37 id. 213, Decision No. 13,846). Accordingly, petitioners� request for an investigation is denied.

THE APPEAL IS DISMISSED.

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