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Decision No. 12,686

Appeal of NANETTE M. KITTELL, on behalf of her son Adrian Voje, from action of the Board of Education of the Three Village Central School District, relating to student discipline.

Decision No. 12,686

(April 17, 1992)

Pelletreau and Pelletreau, Esqs., attorneys for respondent, Vanessa Sheehan, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's affirmance of its superintendent's decision to suspend her son from attendance for the remainder of the 1990-91 school year. Petitioner's request for a stay of the suspension was denied on June 7, 1991. The appeal must be dismissed.

Petitioner's sons is an eighteen year old student at respondent's high school. On March 27, 1991, petitioner's son was involved in an incident in which he allegedly kicked another student in the face, became involved in a verbal confrontation while ignoring a teacher's directive to stop, and placed a staff member attempting to restrain him in a headlock. Based on these incidents, the student was charged with insubordination, disorderly conduct, and conduct endangering the safety, health and welfare of himself and others.

A superintendent's hearing was held on April 15, 1991. At the commencement of the hearing, the principal withdrew the charge that petitioner's son kicked another student. On April 17, 1991, after considering the testimony of the assistant principal, principal and other evidence presented at the hearing, the superintendent found the student guilty of the remaining charges and excluded him from high school for the remainder of the 1990-91 school year. On April 23, 1991, respondent board of education affirmed the superintendent's determination. This appeal ensued.

Petitioner maintains that the procedures followed at the suspension hearing violated due process. In particular, petitioner alleges that the superintendent improperly accepted and considered unsworn statements and allowed a witness to give additional testimony after the close of respondent's case. Petitioner further asserts that the penalty imposed by the superintendent was excessive because her son was provoked and merely acted in self-defense. Arguing that respondent's determination was arbitrary and capricious, petitioner seeks an order nullifying the board's decision.

Respondent asserts that the hearing was fair and that, under the circumstances, a suspension for the remainder of the year was not excessive. Further, respondent asserts that its determination was based solely on evidence submitted during the hearing and was, therefore, not arbitrary. Respondent also argues that the appeal should be dismissed due to improper service by petitioner.

Section 275.8 of the Commissioner's Regulations requires that when a school district is named as a party in an appeal to the Commissioner, a copy of the petition must be delivered to the district clerk, superintendent of schools or a person in the superintendent's office designated by the board of education to accept service. In this case, the Notice of Petition and Petition were served upon the Administrative Assistant to the Assistant Superintendent for Business Services, an individual not authorized by regulation or by respondent to accept service for the board of education. Because petitioner failed to serve a copy of the petition in accordance with "275.8, the appeal must be dismissed.

The appeal must also be dismissed on mootness grounds. Petitioner's son was suspended from school for the remainder of the 1990-1991 school year. The school year is now past, and the record indicates that the student has returned to school. The Commissioner only decides 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 Langenmayr, 30 Ed Dept Rep 322; Appeal of Vachon, 28 id. 276; Matter of Rondot, 27 id. 143). Since the relief requested in this petition was to nullify the suspension, the matter is academic and must be dismissed.

Even if the appeal were not dismissed on procedural grounds, I would be constrained to dismiss it on the merits. The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Ezard, 29 Ed Dept Rep 135; Matter of Chapman, 28 id. 272). Upon review of the record, I find neither the procedures followed in the course of the hearing nor the determination reached arbitrary or unfair.

Petitioner's assertion that the hearing deprived her son of due process because the superintendent admitted into evidence unsworn statements and the testimony of a witness after the close of respondent's case must be rejected. Although a hearing held pursuant to Education Law "3214 must satisfy applicable principles of due process, disciplinary proceedings should not be turned into criminal proceedings (Madera v. BOE, 386 F2d 778, cert. den. 390 U.S. 1028; Schwartz v. Schuker, 298 F. Supp. 238). The fact that a witness gave testimony after the close of respondent's case does not offend due process, as long as petitioner had an opportunity to cross-examine him (SeeRoss v. Disare, 500 F. Supp 928; Matter of Snowberger, 24 Ed Dept Rep 256).

In this case, petitioner had the chance to call witnesses and cross-examine the individuals whose statements were admitted into evidence at the hearing. However, petitioner elected not to exercise her right to cross-examine the witness whose testimony was allowed after the close of respondent's case. Petitioner's knowing waiver of that right does not render the superintendent's determination arbitrary.

Regarding petitioner's assertion that her son's actions were provoked and in self-defense, petitioner raised that defense at the hearing but failed to establish it at the hearing based primarily on the superintendent's assessment of the credibility of the witness. I will not substitute my judgment on determinations of credibility unless the findings are not supported by the facts in the record (Appeal of John T., 30 Ed Dept Rep 1; Matter of Chapman, supra). After hearing the testimony and observing the demeanor of the witness, the superintendent concluded that petitioner's son was not acting in self-defense. The record establishes that the superintendent's determination of guilt was based on competent and substantial evidence. As such, there is no basis to overrule the superintendent's decision or otherwise find the decision arbitrary, capricious or unreasonable (Matter of Chapman, supra; Matter of Cuffee, 7 Ed Dept Rep 60).

Based on the foregoing, I find that the penalty imposed upon petitioner's son was not so excessive as to warrant substitution of my judgment for that of respondent (Appeal of Vachon, supra; Matter of Elkins, 27 id. 99; Matter of Novelli, 22 id. 641; Matter of Vassar, 22 id. 284.