Decision No. 13,707

(November 27, 1996)

Fitzsimmons, DesMarteau, Beale and Nunn, Esqs., attorneys for petitioners, George DesMarteau, Esq., of counsel

Harris Beach & Wilcox, LLP, attorneys for respondent, Andrea Terrillion, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the disciplinary action taken by the Board of Education of the Keshequa Central School District ("respondent") against the above-named students. The appeal must be dismissed.

On March 1, 1996, the above-named students travelled to Rochester, New York, for the Boys' Varsity Basketball Sectional Championships. The cheerleading squad was scheduled to receive their Section V awards at the sectional championships and perform a routine at half-time on Saturday, March 2, 1996. The students attended the event with coaches and parent chaperons. In the early morning hours of March 2, 1996, some students attended a party, apparently organized by former graduates of respondent's high school, at the hotel where the students were staying. Upon discovering that some of the students were not in their rooms at 1 a.m., the cheerleading coach and a chaperon searched the hotel.

Some of the students were found leaving a room on the second floor. The cheerleading coach knocked on the door of the room and a male student, Skarphedinn I., answered. When the cheerleading coach walked into the room, she noticed cigarette smoke and liquor. The coach saw Katie O. and Sheila H. present in the room. The coach informed the hotel's front desk of the incident. The coach also telephoned the parents of the students involved and some of the students went home. The remaining students spoke to the coach about the incident and identified four cheerleaders who were not present in the room and not involved in the incident.

On March 4, 1996 the junior-senior high school principal, with the assistance of the athletic director and the cheerleading coach, investigated the incident. The students were interviewed and upon a student's request, their parents were present during the interview.

The principal subsequently issued a report, outlining the method and background of the investigation, testimony and conclusions. On March 7, 1996, respondent board disciplined the students based on the investigative report. The report determined that Sheila H., Autumn O., April E., Katie O. and Stacy S. had consumed alcohol at the party. They received a five-day suspension, were required to attend ten "insight" classes, received a twenty week suspension from extracurricular activities and were excluded from upcoming field trips. Students Victoria B., Skarphedinn I., Stacy S. and Sheila H. were also barred from participating in the exceptional seniors game. Petitioners contend that Katie O. was dismissed from English 12 based on the incident. Sheila H. was also suspended from activities of the National Honor Society by the Faculty Council of the Keshequa Senior High School National Honor Society.

On March 13, 1996, respondent informed petitioners that the twenty-week suspension from extracurricular activities would only be imposed if the students failed to complete the required "insight" classes. This appeal ensued. Pursuant to 8 NYCRR 276.5, my Office of Counsel requested additional information from the parties concerning the incident. Those materials were received on April 23, 1996. Petitioners' request for interim relief pending a determination on the merits was denied on April 24, 1996.

Petitioners raise numerous objections to respondent's conduct regarding the incident, including failure to follow board policies regarding discipline, denial of due process, imposition of excessive discipline, and violations of the Open Meetings Law and Freedom of Information Law. Petitioners seek an order rescinding the discipline imposed by respondent and expungement of the students' records. Respondent raises procedural defenses, including timeliness, mootness, failure to state a claim upon which relief can be granted and lack of jurisdiction as to alleged Open Meetings Law or Freedom of Information Law claims. Respondent also contends that its disciplinary actions were appropriate, given the students' misconduct.

Before reaching the merits, I will address respondent's claim of untimeliness. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). In this case, the board meeting at which discipline was authorized was held on March 7, 1996. The appeal was commenced by personal service of the petition on April 5, 1996, within the 30 day time period. Therefore, the appeal is timely.

Respondent also claims that the appeal is moot. The Commissioner of Education 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 Lovelock, 36 Ed Dept Rep 2; Appeal of Nash, 35 id. 203; Appeal of Warner, 32 id. 533). Since the five-day suspension has been served and the field trips scheduled for the end of the 1995-96 school year have already taken place, the relief petitioners request is moot regarding those actions. However, since petitioners also seek expungement of student records, the appeal is not moot as to that issue.

Turning to the merits, petitioners contend that the students' due process rights were violated. I will address those due process claims as they relate to the academic suspensions of five days imposed on five of the students. Education Law '3214(3)(d) governs student suspensions of five days or less. As to those suspensions by a principal, "the pupil and the person in parental relation to him shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of the complaining witnesses." Furthermore, 8 NYCRR 100.2(l)(4) requires written notice where a student is suspended for five days or less pursuant to Education Law '3214(3). The record in this case indicates that an interview was conducted by the principal at which parents were present upon a student's request. However, it appears that respondent failed to provide written notice of the suspensions as required by regulation. Respondent is reminded of its obligation to comply with the regulations and provide written notice of academic suspensions in the future.

Petitioners also contend that the disciplinary actions taken by respondent were excessive and in violation of board policy. However, the procedures set forth in Education Law '3214 do not apply to suspension from extracurricular activities (Appeal of Winchell, 35 Ed Dept Rep 221; Appeal of Danison, 31 id. 169; Matter of Watts, 23 id. 459). A board of education has the authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it is shown that the board has abused its discretion, its policy will be upheld (Appeal of Tee, 27 Ed Dept Rep 349; Appeal of Peruzzi, 27 id. 15).

Furthermore, although petitioners allege violations of respondent's policies, the record indicates that respondent's actions were consistent with its policy. Board policy 5312 specifically states that student consequences for the consumption of alcohol are a chemical-use evaluation or a five day suspension. Additionally, the policy requires attendance at "insight classes" with a twenty-week suspension imposed for failure to attend those classes. Respondent's interscholastic athletic regulations delineate consequences for the use or possession of alcoholic beverages, tobacco and illegal drugs. A first violation results in the forfeiture of the student's privilege to play in the next scheduled contest, and the coach has the right to suspend the student for a greater length of time. Therefore, respondent was within its authority under its policies to suspend the students and require attendance at "insight" classes. Furthermore, the cheerleading coach was within her authority to prohibit the students from participating in the cheerleading event in Rochester and subsequent contests such as the exceptional seniors game based on respondent's interscholastic regulations.

In this case, respondent found, after an investigation, that the students engaged in misconduct that was a violation of respondent's board policy and athletic rules. Although petitioners contend that the discipline imposed upon the students was excessive, my review of the record indicates that the discipline imposed was not outside the bounds of respondent's authority. Therefore, I find no basis to overturn it or order expungement of the students' records.

Finally, petitioners' claims regarding the Open Meetings Law and the Freedom of Information Law are not properly before me. I have repeatedly held that alleged violations of the Open Meetings Law must be pursued in a judicial proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, or in a judicial action for declaratory judgment and injunctive relief, and may not be the basis of an appeal to the Commissioner of Education (Public Officers Law '107; Appeal of Chester, 35 Ed Dept Rep 512; Appeal of Loriz, 33 id. 50). Likewise, I have no jurisdiction over petitioners' claims regarding the Freedom of Information Law (Public Officers Law '89(4); Appeal of Greening, 35 Ed Dept Rep 447).

I have reviewed petitioners' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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