Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parents, from action of the Board of Education of the Webster Central School District regarding student discipline.

Decision No. 15,895

(March 13, 2009)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Donald E. Budmen, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Webster Central School District (“respondent”) to suspend their son (the “student”).  The appeal must be dismissed.

During the 2007-2008 school year, the student was a freshman at the Webster Thomas High School in respondent’s district.  By letter dated October 23, 2007, petitioners were notified that the student would be suspended for five days for endangering his own welfare and that of others by possessing, with intent to sell, Adderall pills.

By letter dated October 24, 2007, petitioners were notified that the student had been charged with possession and intent to distribute a controlled substance and that a superintendent’s hearing would be held on October 29, 2007.  At petitioners’ request, the hearing was adjourned until November 20, 2007.

Petitioners requested additional information regarding the allegations and any additional charges against their son.  In response, the superintendent informed petitioners on November 15, 2007 that the charges against the student had been amended as follows:

[P]ossession and intent to distribute a controlled substance (specifically Aderol) . . . on or about October 23, 2007 [Charge I] and,

Sale of a controlled substance in school at various times during the Fall of 2007 [Charge II].

Subsequently, by letter dated November 19, 2007, petitioners requested a manifestation hearing to review the relationship between the student’s disability and the behavior at issue, together with an expedited re-evaluation to determine whether an individualized education program (“IEP”) may be appropriate or necessary.

The hearing was held on November 20, 2007 and the student was found guilty of both charges.  The penalty phase of the hearing was adjourned for 45 days, pending an expedited evaluation of the CSE/504 committee.

Petitioners received a copy of the hearing officer’s interim report, including her recommended findings of fact, on December 4, 2007 and objected to it the same day.

The CSE determined that the student was not a student with a disability under the Individual with Disabilities Education Act or a student with a handicapping condition under section 504 of the Rehabilitation Act of 1973, and that his diagnosis did not constitute an educational disability requiring an IEP or section 504 plan.

By letter dated December 11, 2007, petitioners objected to the CSE’s determination, to what they allege was inadequate alternate education for the student, and to the proposed penalty.

The penalty phase of the hearing was held on December 20, 2007.  By letter dated December 21, 2007, the superintendent notified petitioners that he adopted the findings in the hearing officer’s final report in which the student was found guilty of both charges and that he was suspending the student for the remainder of the 2007-2008 school year, to return to school on September 3, 2008.

By letters dated December 22 and 26, 2007, petitioners appealed the superintendent’s decision to respondent, which affirmed the superintendent’s finding of guilt and penalty.  This appeal ensued.

Petitioners admit the student’s guilt on Charge I but allege that there was insufficient evidence of guilt on Charge II.  Petitioners allege that Charge II is vague and therefore failed to provide the student with reasonable notice of the allegations against him and denied him a fair opportunity to be heard.  Petitioners contend that Charge II violates State and federal constitutions, State Law and district policy.

Petitioners contend that the student did not have the opportunity to confront and cross examine witnesses against him, that the hearsay evidence admitted during the hearing was attenuated and inadequate and that the student was denied due process.  Petitioners allege that the suspension was inconsistent with New York law, State and federal rights, and the school’s code of conduct.  Petitioners allege that the suspension was excessive and harsher than the penalties imposed on similarly situated students.  Finally, petitioners contend that the student was denied adequate alternative education.

Petitioners request that the finding of guilt on Charge II be annulled and expunged from the student’s record and that the penalty relating to Charge I be modified to time served.  Petitioners also request that the student be provided with substantially equivalent education and compensation for the supplemental tutoring which the district denied to him.

Respondent alleges that the student admitted guilt on both charges, and that therefore, there was competent and substantial evidence for the hearing officer’s findings.  Respondent also alleges that the penalty imposed was appropriate and consistent with that imposed in similar cases.  Finally, respondent alleges that the student received substantially equivalent instruction during his suspension.

Petitioners have submitted a reply memorandum of law.  Reply memoranda may be accepted only with the approval of the Commissioner (8 NYCRR §276.4).  Because petitioners did not seek approval before submitting the reply memorandum, I have not considered it.

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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).

Because the student was suspended for the remainder of the 2007-2008 school year, which has ended, the appeal is moot except to the extent that petitioner seeks expungement of the student’s records (Appeal of M.P., 44 Ed Dept Rep 132, Decision No. 15,123; Appeal of a Student with a Disability, 43 id. 372, Decision No. 15,021) and to the extent that petitioners seek compensation for tutoring.

Petitioners challenge the adequacy of the notice regarding Charge II.  The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).  Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings (Bd. of Educ. of Monticello Cent. School Dist. at 136).  Respondent in this case, with respect to Charge II, provided notice that petitioners’ son was charged with the “sale of a controlled substance in school at various times during the Fall of 2007”.  The fall of 2007 constituted an approximately 35 day period from the start of school until the day the student was suspended on October 23, 2007.  Prior to the hearing, petitioners were made aware that their son had made admissions regarding the sale of Adderall during this period and, at the hearing, petitioners submitted evidence with respect to the number of pills which were allegedly available to the student during the period in question.  In light of the foregoing, I find that the hearing notice provided sufficient specificity to enable petitioners and their son to prepare and present an adequate defense.

Petitioners also challenge the determination of guilt on Charge II.  I find that there is sufficient evidence in the record to support the disciplinary determination on this charge.  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 (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  The school’s principal and assistant principal testified that the student admitted, during questioning in the principal’s office, that while he was supposed to take 20 milligrams of Adderall a day, he did not take his medication “since around July or August” but had been instead selling it to students since that time.  They testified that the student also stated “I don’t need to take them so I sell them.” Moreover, the student admitted in a signed statement that “My parents think I take 20 milligrams of Aderall every day.  I don’t take my drugs.  I take it into school and sell it to some kids.”  At the hearing, the student testified that, when questioned by the principal and assistant principal, he was nervous and meant only that he had intended to sell Adderall on October 23, 2007, and that he gave a friend one Adderall pill on one occasion during the week prior to October 23, 2007.

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 L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).  In her decision, the hearing officer states that she found credible the testimony of the principal and assistant principal that the student admitted to the sale of Adderall on more than one occasion.  She also indicated that she found the student’s hearing testimony to be internally inconsistent and inconsistent with his pre-hearing admissions.  Therefore, I find no basis to overturn the findings of the hearing officer and I find that the superintendent’s determination is supported by competent and substantial evidence.

Since the findings of guilt are being upheld and suspension has been served, I need not address the issue of penalty.

Finally, petitioners’ request for compensation for supplemental tutoring, which was allegedly denied to the student, must be dismissed.  The Commissioner lacks the authority to award money damages (Appeal of Sitaras and Saint Basil Academy, 44 Ed Dept Rep 320, Decision No. 15,187).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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