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Decision No. 13,082

Appeal of SUZAN BAJARDI, on behalf of Devin Bajardi, from action of the Board of Education of the Wappingers Central School District, relating to student discipline.

Decision No. 13,082

(December 31, 1993)

Raymond G. Kruse, P.C., attorney for respondent

SOBOL, Commissioner.--Petitioner challenges her son's suspension from school without an opportunity for a hearing. Petitioner asks that respondent be directed to expunge from her son's record any references to a suspension in excess of five days. The appeal must be dismissed.

On September 18, 1992, petitioner's son, Devin, was suspended from school for five days. By letter dated September 24, 1992, he was notified that a hearing would be held on October 2, 1992, ten days after the first day of his suspension. Petitioner commenced this appeal on September 30, 1992 and requested an order readmitting her son to school pending a hearing. Respondent readmitted Devin to school on October 1, 1992 pursuant to my directive. The suspension hearing scheduled for October 2 was then adjourned at petitioner's request to October 8, 1992.

The sole issue presented in this appeal is whether respondent acted improperly by excluding Devin from school beyond five days without offering him the opportunity for a hearing. Respondent contends that the matter was rendered moot when the student was readmitted to school on October 1, 1992. However, since petitioner also seeks an order expunging Devin's record, a live controversy remains which must be addressed (Appeal of Wilson, 28 Ed Dept Rep 254, 256).

Education Law '3214(3)(c) provides:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, ...

Under '3214(3)(c), a suspension may not continue beyond five days unless the superintendent has scheduled a timely hearing (see, Ross v. Disare, 500 F. Supp. 928, 933 [1977]). However, where a hearing is timely scheduled, but adjourned at the parent's request, the five-day requirement is vitiated (Matter of Wehner, 22 Ed Dept Rep 661, 663). Petitioner's son was suspended on Friday, September 18, 1992, and a hearing was not scheduled to take place until Friday, October 2, 1992 -- ten days after the suspension. Having been readmitted after the violation of the five day rule pursuant to my October 1, 1992 directive, the student was actually excluded from school for only three days. Accordingly, there is no record of a suspension in excess of five days to expunge. Moreover, since respondent allowed Devin to remain in school from October 2, 1992, until the adjourned date of October 8, 1992 -- which would not have been required in a case where the hearing delay was prompted solely by the parent's request for an adjournment (Matter of Wehner, supra) -- I find that Devin was adequately compensated for any days he was improperly excluded. Nevertheless, respondent is admonished to comply in the future with Education Law '3214(3)(c).