Appeal of M.M., on behalf of his son G.B., from action of the Board of Education of the Middle Country Central School District regarding student discipline.

Decision No. 16,587

(February 13, 2014)

Guercio & Guercio, LLP, attorneys for respondent, Christine

M. La Place, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Middle Country Central School District (“respondent”) suspending his son, G.B. The appeal must be dismissed.

During the 2012-2013 school year, petitioner's son, G.B., attended kindergarten at respondent's Bicycle Path Pre-K/Kindergarten Center. On April 24, 2013, the school principal suspended G.B. for five days for possession of a knife on school grounds. The principal requested a superintendent's hearing, and, by letter dated April 25, 2013, petitioner received notice that a hearing would beheld on the following charge:

It is alleged that on or about April

24, 2013, [G.B.], while on the campus

of Bicycle Path Pre-K/Kindergarten

Center, was in possession of a weapon

(knife).

The hearing was originally scheduled for April 29,2013 but was held on May 17, 2013 due to petitioner’s requests for adjournments.

At the superintendent’s hearing, G.B.’s teacher testified on behalf of respondent, and petitioner and G.B. were accompanied by their counsel. Following testimony from all parties, the hearing officer found G.B. guilty of the charged misconduct and recommended G.B. be suspended until May 31, 2013. Petitioner appealed to respondent which affirmed the superintendent’s decision by letter dated August 15, 2013. This appeal ensued.

Petitioner alleges that his son is not guilty of the alleged charge, claiming, inter alia, that a penknife is not a weapon. He also maintains that the teacher’s testimony at the hearing was based on hearsay. He asserts that his son made an error in judgment and questions the purpose of a suspension. As relief, petitioner requests

“the word weapon be stricken from all records relative to his son’s suspension.” Petitioner further requests that I require respondent to “train key personnel in the appropriate handling of minor children in non-emergency situations,” “enjoin school personnel and proscribe repercussions from hypothetical analysis” and reimburse petitioner for educational expenses in the amount of $2,500.00 incurred as a result of his son’s suspension.

Respondent argues that the appeal should be dismissed in its entirety on the grounds that petitioner’s due process rights under Education Law §3214 were not violated, there was sufficient evidence to sustain the charge and the penalty imposed upon G.B. was not excessive. Respondent also maintains that petitioner has failed to state a claim upon which relief can be granted, and that the appeal is moot. Respondent further contends that I lack jurisdiction to order the requested relief, and that the suspension of

G.B. was not arbitrary or capricious but was in all respects proper.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). The suspension has been served and the appeal must be dismissed as moot except to the extent petitioner seeks expungement of the disciplinary action from his son’s records (Appeal of P.M., 51 Ed Dept Rep, Decision No. 16,337; Appeal of L.L., 51 id., Decision No. 16,334; Appeal of a Student with a Disability, 49 id. 452, Decision No. 16,079; Appeal of a Student Alleged to Have a Disability, 49 id. 302, Decision No. 16,034). Petitioner does seek to have the word “weapon” stricken from the official records and transcripts of his son’s suspension proceedings. However, such a claim necessarily constitutes a challenge to the legality of the charge brought against petitioner’s son, which alleged that he was in possession of a “weapon (knife).” Yet petitioner has not sought to have his son’s suspension expunged from his record, and his failure to do so renders this claim moot. Similarly, the appeal is also moot to the extent petitioner alleges that respondent “failed in its responsibility to provide alternate instruction” for G.B. (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,434; Appeal of C.M., 50 id., Decision No. 16,142).

Furthermore, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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

THE APPEAL IS DISMISSED. END OF FILE