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Decision No. 12,907

Appeal of DONNA WARNER from action of the Board of Education of the Albion Central School District, relating to student discipline.

Decision No. 12,907

(April 12, 1993

Harris, Beach & Wilcox, Esqs., attorneys for respondent, David W. Lippitt, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's decision to suspend her daughter from school for ten weeks. The appeal must be dismissed.

Petitioner's daughter is an eighth grade student in respondent's middle school. On November 12, 1992, the student was involved in a fight with another student. Both students were suspended for five days. Petitioner's daughter was referred for a superintendent's hearing pursuant to Education Law '3214. The hearing was held on November 20, 1992 and petitioner's daughter was suspended for the remainder of the semester. The record indicates that petitioner's daughter admitted to punching the other student involved in the fight. The other student was suspended from all extra-curricular activities for the remainder of the semester as the result of a separate hearing. Petitioner's daughter did not receive alternative instruction until November 30, 1992.

Petitioner asserts that the penalty imposed by the superintendent was excessive and should be identical to that of the other student involved. Petitioner also claims that the transcript of the hearing is inaccurate and that her daughter only admitted to pushing the other student, not punching her. Petitioner asserts that the school district was negligent in not providing timely alternate education. Petitioner also requests that her daughter's record reflect that the suspension was unfair.

Respondent contends that the penalty imposed was appropriate. Respondent also asserts that the hearing transcript was accurate. Respondent admits that it failed to provide alternate instruction to petitioner's daughter until November 30, 1992.

Petitioner's daughter was suspended from school on November 20, 1992 for the remainder of the semester. The petition was not filed until December 21, 1992 and petitioner did not request a stay. The semester is now past. Since 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, the appeal is moot to the extent that petitioner seeks her daughter's reinstatement (Appeal of Langenmayr, 30 Ed Dept Rep 322; Appeal of Vachon, 28 id. 276; Matter of Rondot, 27 id. 143).

Petitioner's assertion that the hearing transcript was incorrect is not supported by the evidence. Education Law '3214(3)(c) provides in pertinent part: "A record of the hearing shall be maintained, but no stenographic transcript shall be required and a tape recording shall be deemed a satisfactory record." The record indicates that a verbatim transcript was taken by a recorder at the hearing. Respondent's superintendent affirms that the student's testimony was that she punched the other student. Although petitioner asserts that her daughter stated "I pushed her" and not "I punched her" as the transcript indicates, she offers no evidence to support her contention that the transcript is incorrect and thus fails to meet her burden of proof (Appeal of Garnett, 32 Ed Dept Rep 91; Appeal of Singh, 30 id. 284).

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 Kittell, 31 Ed Dept Rep 419; Appeal of Ezard, 29 id. 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. Therefore, I cannot grant petitioner's request that her daughter's record reflect that the suspension imposed was unfair.

Petitioner alleges that respondent failed to provide her daughter with alternative instruction from the date of her suspension on November 20, 1992. Education Law '3214 requires that school districts take immediate steps to furnish appropriate alternative instruction (Appeal of Klug, 20 Ed Dept Rep 134; Matter of Gesner, 20 id. 326). Respondent admits that it did not immediately provide a tutor and acknowledges that its actions were improper. Respondent claims that it has taken corrective measures to ensure that tutors will be provided to students suspended from school from the first day of their suspension. Respondent is admonished to fully comply with the provisions of alternative instruction in the imposition of any further disciplinary sanctions.