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Decision No. 17,505

Appeal of A.V., on behalf of her son N.V., from action of the Board of Education of the Brockport Central School District regarding student discipline.

Decision No. 17,505

(September 14, 2018)

Harris Beach, PLLC, attorneys for respondent, Sara E. Visingard, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Brockport Central School District (“respondent”) to suspend her son (“the student”) from school.  The appeal must be dismissed.

During the 2016-2017 school year, the student attended eighth grade at respondent’s middle school and was a member of the lacrosse team.  On May 9, 2017, the student was involved in incidents in which he sang a racially offensive song while in an art class and a hallway, and on a on school bus while on the way to a lacrosse game.  He also made an obscene gesture while on the school bus.

The parties do not dispute that on May 10, 2017, petitioner was contacted by respondent’s middle school assistant principal and asked to “come to the [m]iddle [s]chool to pick up [the student] because of an incident that occurred on the [l]acrosse bus the night before.” 

By letter dated May 11, 2017, respondent’s middle school principal notified petitioner that the student would be suspended for five school days, from May 11, 2017 through May 17, 2017, because his “presence in school pose[d] a continuing danger to persons or property, or an ongoing threat to the disruption of the academic process.”  The letter charged the student with violating the district’s code of conduct, including “Disorderly Conduct – Disruptive Behavior” and “Endangering Safety, Morals, Health or Welfare of Others – Violent Behavior.”  Specifically, the letter detailed the student’s charged misconduct as “sang an inappropriate song that referenced cultural, religious, or ethnic groups which promoted racism on a district school bus and while in school” and “made inappropriate sexual motions on a district school bus.”  The letter further advised petitioner of her due process rights prior to the suspension and that a referral would be made to the superintendent for possible further disciplinary action.

By letter dated May 12, 2017, respondent’s superintendent (“superintendent”) charged the student with the conduct detailed above and scheduled a long-term suspension hearing for May 16, 2017.  The hearing, presided over by a hearing officer, convened as scheduled on May 16, 2017.  At the hearing, the student admitted to singing the racially offensive song and making the obscene gesture.  Accordingly, the hearing officer found the student guilty of the charged conduct.  According to an affidavit from the superintendent filed with this appeal, the hearing officer recommended that the student be suspended through December 31, 2017.  By letter dated May 17, 2017, the superintendent notified petitioner that she accepted the hearing officer’s recommendations regarding guilt and penalty.  The letter further stated that if the student “completes an online race education program, [the superintendent] will consider ending his suspension early.”  By letter dated June 12, 2017, petitioner appealed this decision to respondent.  By letter dated June 21, 2017, respondent notified petitioner  that it had upheld the superintendent’s determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 20,2017.

Petitioner does not contest the student’s guilt of the charged misconduct and confines her challenge on appeal to the long-term suspension, arguing that the penalty imposed is excessive.[1]  Petitioner also argues that the student is being provided with inadequate alternative education services.  As relief, petitioner requests “[a] determination that the long-term suspension given to [the student] was excessive.” 

Respondent argues that the appeal must be dismissed because petitioner has failed to meet her burden of proof.  Respondent asserts that the sanction imposed on the student is proportionate to the severity of the offense involved and that the student has received and will continue to receive two hours per day of alternate instruction which is in accordance with legal requirements and prior Commissioner’s decisions. Respondent also maintains that its actions and determination with respect to the discipline of the student were in accordance with Education Law §3214, board policy and the district’s code of conduct and therefore, its actions were not arbitrary or capricious. 

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).

The record reflects that the student was suspended through December 31, 2017 and was permitted to return to school on January 2, 2018.[2]  Petitioner’s request for interim relief was denied and the student served the suspension.  Petitioner does not seek expungement of the student’s record and there is no meaningful relief that can be granted.  Accordingly, petitioner’s claims regarding her son’s suspension are moot and must be dismissed (Appeal of T.W., 54 Ed Dept Rep, Decision No. 16,728; Appeal of a Student with a Disability, 52 id., Decision No. 16,375; Appeal of H.B., 49 id. 433, Decision No. 16,073, aff’d, sub nom Binder, et al. v. Cold Spring Harbor CSD, et al., Sup. Ct., Albany Co., [McGrath, J.], March 23, 2011). 

Similarly, the appeal is also moot to the extent petitioner alleges that respondent failed in its responsibility to provide alternate instruction for the student.  Here, the student has completed the suspension for which he was provided alternative instruction, thus rendering any dispute as to these services moot (Appeal of F.A., 57 Ed Dept Rep, Decision No. 17,383; Appeal of C.B. and B.R., 50 id., Decision No. 16,192).

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Petitioner also argues that the vice-principal testified at the long-term suspension hearing without being sworn in, and that although she was advised that there was video evidence, none was presented at the hearing.  However, petitioner requests no relief in this regard.

 

[2] As noted, in the superintendent’s May 17, 2017 letter, she indicates that if the student completes an online race education program, she will “consider ending his suspension early.”  The petition indicates that the student “will, [sic] participate in the race education program,” however, the record does not indicate whether the student completed the race education program or whether his suspension was shortened.