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Decision No. 12,889

Appeal of THOMAS AND LINDA WOOD, on behalf of their sons TREVOR and TUCKER WOOD, from action of the Board of Education of the Enlarged City School District of Middletown, Dennis P. Hand, as Assistant Principal, and Mary Gisondi, as Principal, relating to student discipline.

Decision No. 12,889

(February 24, 1993)

Gleason, Dunn, Walsh & O'Shea, Esqs., attorneys for petitioners, Brendan C. O'Shea, Esq., of counsel

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondents, Rochelle J. Auslander, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondents' decision to suspend them from attendance for five days. The appeal must be dismissed.

On March 20, 1990, petitioner Trevor Wood was suspended from school. While leaving the building, he became embroiled in a verbal and physical confrontation with respondent Hand, the assistant principal at Middletown High School. Apparently, petitioner Tucker, Trevor's brother, also became involved in the altercation. In response, the assistant principal suspended Trevor and Tucker for five days commencing March 21, 1990. Respondent Gisondi, the principal of Middletown High School, provided the parents with formal notice of the suspension. The reasons given for the suspension were defiance of an administrator's directions, endangering the health and safety of self and others and insubordination/discipline problems.

A superintendent's hearing was scheduled for Trevor on March 29, 1990. Since the events leading up to the suspension resulted in criminal charges as well, Trevor's parents, petitioners Thomas and Linda Wood, requested that the hearing be adjourned. On January 9, 1991, the criminal charges were settled. Although respondent Hand, the assistant superintendent, and petitioner Trevor Wood agreed not to pursue a civil action seeking damages at the settlement conference, the student reserved the right to appeal the suspension to the Commissioner of Education. In June 1991, Trevor graduated from high school. As of September 4, 1991, petitioner Tucker Wood enrolled in another school district. According to the record, any record of the suspensions and the incidents leading up to them were expunged from both students' records in accordance with respondents' policies. Nonetheless, on June 12, 1992, petitioners requested that respondents reschedule the hearing, originally scheduled for March 29, 1990. When they did not receive a response, they commenced this appeal.

Petitioners contend that respondents violated due process when they failed to offer an informal hearing at the time the suspensions were imposed. They now seek a hearing or expungement of both students' records.

Respondents seek to have the appeal dismissed as untimely. They also claim that the appeal is moot since all records of the suspension have been expunged. Further, they contend that the suspensions were imposed in accordance with Education Law '3214.

An appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR '275.16; Appeal of Bach, 32 Ed Dept Rep 273). The suspensions complained of here occurred on March 20, 1990. A criminal matter relating to the events surrounding Trevor's suspension was resolved on January 9, 1991. Petitioners demanded a hearing on June 12, 1992, more than two years after the suspensions took place. Petitioners provide no excuse for their delay. Therefore, the appeal must be dismissed as untimely.

With regard to petitioners' request that any record of the suspensions be expunged, the record indicates that both students' records have already been expunged. Since I will not render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest, the petition must also be dismissed as moot (Appeal of Allert, 32 Ed Dept Rep 242; Appeal of Wilhelm and Lynn R., 31 id. 509; Appeal of Vachon, 28 id. 276).

Although the appeal must be dismissed on procedural grounds, I will nevertheless comment on the merits. Petitioners assert a violation of their children's due process rights by virtue of a suspension without an opportunity for an informal conference. To the extent there may have been confusion over the legal obligation of a school district to notify a parent of the right to an informal conference upon suspension, Commissioner's regulation at '100.2(e)(4) now requires school districts to notify parents in any suspension of five days or less of the right to request an informal conference in accordance with Education Law '3214(3)(d).

Regarding petitioners' request for costs and attorney's fees, the Commissioner of Education has no authority to award costs or attorney's fees in appeals brought pursuant to Education Law '310 (Appeal of Ingraham, 32 Ed Dept Rep 191; Appeal of Sileo, 28 id. 313).