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Decision No. 16,625

Appeal of D.C., on behalf of her son M.C., from action of the New York City Department of Education regarding student discipline.

Decision No. 16,625

(June 30, 2014)

Neighborhood Defender Service of Harlem, attorneys for petitioner, Jacqueline Harrington, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Gloria M. Yi, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of Dennis M. Walcott, then Chancellor1 of the New York City Department of Education (“respondent”), to suspend her son. The appeal must be dismissed.

During the 2010-2011 school year, petitioner’s son, M.C., was a 16-year-old student attending the New York City Department of Education’s (“NYCDOE”) High School of Hospitality Management (“school”). On the morning of March 31, 2011, M.C. arrived at school, swiped his student ID card, and placed his book bag on the school security scanner. According to respondent, a school safety agent (“SSA”) observed from the scanning device that the student’s book bag contained an eyeglass case, which appeared to be empty, but no eyeglasses were in the book bag or on the student. The SSA asked M.C. to remove his eyeglass case from his book bag, and when the eyeglass case was opened, the SSA found three bags of marijuana and rolling papers.

By letter dated March 31, the Chief Executive Officer in respondent’s Office of School and Youth Development (“CEO”) notified petitioner that M.C. would be suspended, effective April 1, and that a suspension hearing was scheduled for April 7. M.C. was charged with being in possession of a controlled substance, three bags of marijuana, on March 31, 2011, at the school.

The hearing was rescheduled for April 13 at petitioner’s request, and then for April 15 at respondent’s request. In a report dated April 21, the CEO sustained the charge and imposed a suspension of 10 school days, effective April 1, through April 14. In that report, the
CEO noted that all records relating to the suspension would be expunged upon M.C.’s graduation or departure from respondent’s schools, “provided there are no additional incidents of misbehavior resulting in a Principal’s or Superintendent’s suspension, which is ultimately sustained.”

M.C. appealed to respondent, who sustained the CEO’s determination by decision dated June 6, 2011. Specifically, respondent found that substantial and competent evidence existed to sustain the charge against M.C.; that the search was not unreasonable and did not violate the Chancellor’s regulations or the Fourth Amendment; and that, even if the search was unreasonable, the exclusionary rule is inapplicable in student disciplinary proceedings. This appeal ensued.

Petitioner seeks to have the suspension overturned and expunged from M.C.’s records. Petitioner contends that the marijuana was obtained during an unreasonable search of M.C.’s backpack, and that, as a result, its admission into evidence in the disciplinary hearing violates the student discipline code, the Chancellor’s regulations, and the Fourth Amendment of the United States Constitution.

Respondent argues that substantial and competent evidence supports the student’s suspension and that petitioner has not met her burden of establishing that she is entitled to the requested relief. Respondent further argues that the search of the student’s bag was not unreasonable; that evidence of the marijuana was properly admitted as evidence in the suspension hearing; and that, even if the exclusionary rule did apply, the student’s suspension should be sustained.

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 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). To the extent M.C.’s suspension has been served, the appeal is moot. Petitioner’s request for expungement is also moot. At the time of the incident, M.C. was a 16-year-old high school student. According to the affirmation submitted by respondent’s counsel pursuant to 8 NYCRR §276.5(a), on or about September 7, 2012, the student, who was then over seventeen years of age, voluntarily withdrew from the school after 20 consecutive absences. M.C. was discharged from NYCDOE’s public schools without graduating. In addition, respondent’s counsel affirmed that the record of suspension was expunged from M.C.’s records, effective September 7, 2012, the date he was discharged from NYCDOE’s schools.

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

THE APPEAL IS DISMISSED.

1 At the time of the determination, the Chancellor was Dennis M. Walcott. The current Chancellor is Carmen Fariña.

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