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Decision No. 13,878



Appeal of GABRIEL and LESLIE OYIBO, on behalf of their son EJIMA OYIBO, from action of the Board of Education of the Half Hollow Hills Central School District, relating to student discipline

Decision No. 13878

(February 26, 1998)

Ehrlich, Frazer & Feldman, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Half Hollow Hills Central School District ("respondent") to assign their son, Ejima, detention. The appeal must be dismissed.

Petitioners reside within the Half Hollow Hills Central School District ("district") and their son, Ejima, was a freshman at Half Hollow Hills High School East at the time this appeal was commenced. Petitioners also have two other children attending the high school, including a daughter, Hassana, who is in the same class as Ejima.

On May 15, 1997, the assistant principal assigned Ejima to one day of detention as a result of Ejima's behavior in science class earlier that day. Specifically, the detention in question occurred after his teacher, Mrs. Daykin, asked Ejima to leave the classroom on May 15, 1997. Petitioners contend that Mrs. Daykin asked Ejima to leave after he correctly answered a question she posed to him. They further contend that she told Ejima to go to the library with an outdated biology textbook in order to ensure that he would not perform well on an upcoming test. Petitioners also contend that they were not informed of the detention until May 19, 1997.

Although petitioners only seek a reversal of Ejima's detention, the petition lists a number of other complaints against the district in an attempt to show that respondent has created a hostile learning environment for petitioners' children. In particular, petitioners allege that Ejima and Hassana's biology teacher, Mrs. Daykin, has falsified and arbitrarily lowered their children's grades, refused to return graded test papers, and deliberately scheduled examinations so that they would perform poorly. Petitioners had previously requested the transfer of their children to a different biology teacher. Respondent's principal and superintendent refused that request.

Upon receipt of the detention notice petitioners notified the principal, Mr. McCaffrey, and the assistant principal, Mr. Kindelmann, that they would withhold Ejima from the detention and institute this appeal. Consequently, Ejima did not attend detention on the scheduled date. Pursuant to the school's policy and practice, the assistant principal assigned an additional day of detention for missing the first assignment. Ejima served this detention on May 28 and 29, 1997. Petitioners commenced this appeal on May 28, 1997 and requested that I reverse respondent's decision to assign Ejima to detention. I denied petitioners' request for interim relief on June 9, 1997.

Respondent contends that the decision to suspend Ejima was proper. Specifically, respondent maintains that Ejima was asked to leave the classroom because he was shouting answers, talking and disrupting the class. Respondent also contends that Ejima was given several warnings before he was asked to leave, and that his refusal to follow the teacher's instruction and leave the classroom prompted her to refer the matter to Mr. Kindelmann after class. Respondent contends that any delay in notice was due to Ejima's failure to pick up a letter that he was to deliver to petitioners informing them of the detention.

Finally, respondent contends that the appeal should be dismissed on a number of grounds including failure to state a claim upon which relief can be granted, mootness, untimeliness and failure to exhaust administrative remedies.

Initially, I will address the issue of timeliness. Pursuant to "275.16 of the Commissioner's Regulations, an appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of. While petitioners raise a number of past events in the petition, petitioners only seek relief concerning the assignment of detention on May 15, 1997. Since petitioners commenced this appeal on May 28, 1997, the appeal concerning Ejima's detention is timely.

The appeal must however be dismissed as moot. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Alexander, 36 Ed Dept Rep 160; Appeal of the Bd. of Educ., East Ramapo Central School Dist., 35 id. 542). The only relief petitioners seek, other than the interim order that was already denied, is the reversal of the detention assignment. Respondent states that Ejima served the two-day detention assignment on May 28 and 29, 1997 and submits the detention attendance sign-in sheets in support of that contention. Petitioners have not disputed this contention. Petitioners did not specifically request expungement of Ejima's record, which is unnecessary in any event because respondent states that it does not record detention assignments in a student's record. Accordingly, the appeal is moot.

Even if it were not moot, the appeal would be dismissed on the merits. Education Law "1709(2) provides the authority for boards of education to "establish such rules and regulations concerning the order and discipline of the schools..." Consequently, boards of education can maintain discipline in the schools by reasonable means, including detention. Only in cases where the penalty is clearly excessive will I act to substitute my judgment for that of a board of education (Appeal of Sandra L., 37 Ed Dept Rep 197; Appeal of Alexander, supra). The record shows that Ejima spoke in class without first obtaining permission from the teacher. Petitioners do not offer any evidence to support their contention that other students were also speaking out without first obtaining permission. Moreover, petitioners have failed to substantiate their claims concerning a hostile environment or prove that this alleged environment had an impact on the decision to suspend Ejima. In an appeal before the Commissioner of Education, petitioners have the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which he or she seeks such relief (Appeal of Lupiani 36 Ed Dept Rep 355; Appeal of Marek, 35 id. 314). Petitioners have failed to meet that burden. In view of Ejima's insubordinate behavior, I do not find the penalty imposed to be excessive.

In light of the foregoing disposition, I will not address respondent's remaining contentions.