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Decision No. 15,202

Appeal of C.L., on behalf of N.H., from action of the Board of Education of the Enlarged City School District of the City of Newburgh regarding student discipline.

Appeal of J.W., SR., on behalf of J.W., JR., from action of the Board of Education of the Enlarged City School District of the City of Newburgh regarding student discipline.

Appeal of J.W., SR., on behalf of J.W., from action of the Board of Education of the Enlarged City School District of the City of Newburgh regarding student discipline.

Appeal of W.S., on behalf of S.S., from action of the Board of Education of the Enlarged City School District of the City of Newburgh regarding student discipline.

Appeal of D.H., on behalf of L.P., from action of the Board of Education of the Enlarged City School District of the City of Newburgh regarding student discipline.

Decision No. 15,202

(April 6, 2005)

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw and Jillian E. Cass, Esqs., of counsel

MILLS, Commissioner.--In separate appeals, petitioners challenge decisions of the Board of Education of the Enlarged City School District of the City of Newburgh ("respondent") suspending their children from school. Because the appeals present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.

Petitioners' children were involved in an April 20, 2004 melee at respondent's high school. As a result, each child was suspended for five days by the high school principal. Additionally, petitioners were notified that a superintendent's hearing would be held to determine whether a further suspension was warranted. With the exception of student J.W., on the scheduled hearing date, each of the petitioners and their respective children executed a "Waiver of Long-Term Suspension Hearing Rights and Acceptance of Disciplinary Action" form admitting the student's involvement in the April 20, 2004 incident, waiving his or her right to a hearing and any appeal, and agreeing to the penalty specified in the waiver document.

The waiver agreements for J.W., Jr. and S.S. provide for a suspension "through and including graduation." Apparently both students were enrolled as seniors during the 2003-2004 school year. The waiver agreements for L.P. and N.H. provide for a suspension "through and until the student graduates," but further provide that "the suspension will be held in abeyance at the [end] of the [2003-2004] school year." The agreements for L.P. and N.H. further permitted the students to attend summer school and return to school during the 2004-2005 school year provided that they abide by a "probation contract," which specifies, among other things, that if the student fails to abide by the student code of conduct, the principal may refer the matter to the superintendent for a hearing pursuant to Education Law �3214 for further disciplinary action.

With respect to J.W., the superintendent's designee conducted a hearing on April 29, 2004. At the conclusion of the hearing, the hearing officer found J.W. guilty of the charges and recommended a suspension for the remainder of the school year. He further recommended that J.W. be permitted to attend summer school and return to school for the 2004-2005 school year on "probationary status," requiring that he abide by school district rules or be subject to a superintendent's hearing for possible additional punishment. By letter dated June 2, 2004, respondent's acting superintendent advised petitioner J.W., Sr., that she was adopting the hearing officer's penalty recommendation. Petitioner J.W., Sr., did not appeal the acting superintendent's determination to respondent.

These appeals ensued. Petitioners' requests for interim relief were denied on June 21, 2004.

Petitioners contend that the principal lacks the authority to impose a suspension, that the suspensions were imposed "without regard to the circumstances giving rise to the offense," and that suspension from graduation ceremonies is improper. Petitioners request that I find the suspensions improper, but do not seek expungement of their children's records.

Respondent claims, among other things, that the appeals are moot and that the appeals are not ripe for review because petitioners failed to appeal to respondent.

The appeals must be dismissed as moot with regard to the suspensions served.  In all five appeals, the penalty imposed was essentially a suspension for the remainder of the 2003-2004 school year.  Since the school year has ended and the students have served the suspensions, the appeals must be dismissed as moot (Appeal of D.W., 43 Ed Dept Rep 188, Decision No. 14,965; Appeal of R.R. and K.R., 41 id. 405, Decision No. 14,726; Appeal of D.H., 41 id. 142, Decision No. 14,640).  Moreover, it appears that respondent permitted those students who had met graduation requirements to attend graduation ceremonies.

To the extent that L.P. and N.H. were required to sign a probationary contract in order to return to school, their appeals are not moot. However, the requirement that these students enter into a probationary contract was a provision of the waivers into which L.P. and N.H. and their parents entered. To effectuate a waiver of rights under Education Law �3214, the waiver must not only be voluntary, knowing and intelligent, but the district must also provide the student and parents with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights (Appeal of V.L., 44 Ed Dept Rep 160, Decision No. 15,132; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818; Appeal of J.G., 39 id. 393, Decision No. 14,270). In this case, there are no allegations that the waivers did not meet these criteria. Therefore, I find no basis on which to find the probationary contracts improper. Moreover, the contracts merely state that the student agrees to work diligently and to abide by the district's rules and regulations, and that in the event the student violates these terms, the building principal may refer the matter to the superintendent for a hearing pursuant to Education Law �3214 and seek additional discipline commensurate with the seriousness of the infraction. Therefore, none of the conditions of the contract imposed any special rules or regulations on the students that were not similarly imposed on their fellow students (see, Appeal of a Student with a Disability, supra).

To the extent that J.W. was allowed to return to school on "probationary status," his appeal is also not moot. However, Education Law �3214(3)(c)(1) provides that "[a]n appeal will lie from the decision of the superintendent to the board of education . . . ." Accordingly, the decision of a superintendent following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Application of a Student With a Disability, 43 Ed Dept Rep 161, Decision No. 14,954; Appeal of D.C., 41 id. 190, Decision No. 14,661; Appeal of P.R. and C.R., 41 id. 48, Decision No. 14,611). J.W.'s parents did not appeal to respondent. Therefore, this claim must be dismissed for failure to exhaust administrative remedies.

In light of the foregoing, I need not address the parties' remaining contentions.

THE APPEALS ARE DISMISSED.

END OF FILE