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Decision No. 14,049

Appeal of IVAN KAINZ from action of the Board of Education of the Amherst Central School District regarding student discipline.

Decision No. 14,049

(December 21, 1998)

Linda L. Kaumeyer, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Amherst Central School District ("respondent") affirming the imposition of a five-day in-school suspension against him. The appeal must be dismissed.

During the 1997-98 school year, petitioner was a senior at respondent’s Amherst Central High School. On March 30, 1998, Principal Joseph Podgorski imposed a five-day in-school suspension against petitioner because he had failed to attend his mathematics classes on January 30, February 10 and March 20, 1998. Upon being notified of the suspension, petitioner and his father complained to individual board members that the discipline was unfair and excessive. Thereupon, the district’s Assistant Superintendent, Paul Weitig, scheduled an informal conference with the principal and assistant principal for April 21, 1998 and invited petitioner and his parents to attend. They did not attend, but requested, instead, that the district assign a faculty friend to assist petitioner in the review process, as provided in the student handbook. On April 21, 1998, petitioner wrote to Dr. Weitig, and informed him that he was aware of his "student rights", as outlined in the student handbook. Petitioner requested that the district "use whatever means ... are necessary in assuring [that his] ‘student rights’ are recognized under [the] specific school guidelines."

On April 29, 1998, petitioner wrote to Paul Batt, President of respondent board, and requested, pursuant to Commissioner’s Regulations, Part 200, an "impartial hearing", with an "impartial hearing officer to arbitrate or render a decision in this case." By letter dated May 20, 1998, Dr. Wietig informed petitioner that Part 200 of the Commissioner’s regulations did not apply to him inasmuch as he was not a student classified with a disability, and that petitioner was entitled only to an informal conference with the principal. The district rescheduled a second informal conference for May 29, 1998 and invited petitioner, his parents and the faculty friend to attend, state petitioner’s case and examine the witnesses against him. The suspension was held in abeyance pending the ultimate results of the conference.

Petitioner and his parents did not attend the scheduled conference on May 29, 1998. Nevertheless, in an effort to complete the review process before the end of the school year, Dr. Weitig proceeded with the informal conference at which Principal Podgorski, Assistant Principal Caiola and faculty friend Nancy Riccio attended. After listening to the evidence, Dr. Wietig upheld the suspension.

On May 29, 1998, Dr. Wietig wrote to petitioner and his parents. The letter, sent by overnight express mail delivery, informed petitioner of the conference results and directed that he serve the suspension on June 3, 4, 8, 9 and 10, 1998. Petitioner rejected this delivery.

On June 2, 1998, the district’s attorney forwarded a copy of Dr. Wietig’s letter to petitioner and his father. She informed them that the suspension period had been postponed to June 4, 1998 and requested that they inform her, by telephone, whether they wished to appeal the matter to the board at its scheduled meeting on June 16, 1998.

In the interim, petitioner filed a lawsuit in Federal District Court, requesting a temporary restraining order and other injunctive relief against the district. The district again postponed petitioner’s suspension, and, after considering petitioner’s repeated complaints that the suspension would interfere with his examination period, the board convened a special meeting on June 9, 1998 to accommodate petitioner. On June 8, 1998, during her appearance in District Court, the attorney informed petitioner of the rescheduled board meeting on June 9, 1998. The following day, the District Court dismissed petitioner’s action.

Petitioner and his father attended the June 9 board meeting, which six district employees and the school attorney also attended. The board invited petitioner to present his case. He instead submitted a written document requesting a one-week extension to prepare his case before the board. Petitioner claimed that the 24-hour notice of the board meeting was insufficient to prepare "necessary documentation" and to have "important expert witnesses" present "vital testimony". After some deliberation, the board denied the request on the ground that petitioner already had received ample time within which to prepare his case. The meeting proceeded. Petitioner acknowledged that he had skipped three mathematics classes but felt that the five-day in-school suspension, which respondent’s principal sought to impose, was unacceptable and unfair. He believed that the imposition of a three-day in-school suspension would have been more reasonable.

By letter dated June 9, 1998, the board confirmed the five-day in-school suspension to commence on June 10, 1998. Thereafter, this appeal ensued. On June 25, 1998, I denied petitioner’s request for interim relief pending a determination of the appeal.

Petitioner contends that he was not afforded adequate notice of the board hearing and that the one-day notice was insufficient to enable him to prepare adequately for the hearing and to call his witnesses. He also contends that the penalty imposed was excessive and now argues that a two-day in-school suspension would have been more reasonable.

Respondent counters that the petition lacks merit because petitioner was afforded a full and fair opportunity to be heard prior to serving his five-day in-school suspension and the penalty imposed is reasonable. Respondent argues that the appeal should be dismissed as moot because petitioner already has served the suspension, as scheduled.

The appeal must be dismissed because it is 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 McConnon, 37 Ed Dept Rep 691; Appeal of Oyibo, 37 id. 356). Petitioner appeals the penalty imposed, not the finding of guilt. Thus, the only relief that could be granted, other than interim relief which was already denied, would be a reduction in the suspension. Petitioner has already served the suspension, and has, in fact, graduated. Thus, any issue with respect to the appropriateness of the penalty is academic, and the appeal is moot (see, Appeal of McConnon, supra; Appeal of Oyibo, supra).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner seems to argue that he was not afforded certain due process protections because he was denied an adequate opportunity to prepare his case before the board. However, in-school suspensions or other similar disciplinary steps taken by school administrators do not require the full panoply of protections that are accorded for a suspension from school, as set forth in Education Law "3214 (Appeal of Gaslow, 34 Ed Dept Rep 293; Appeal of Danison, 31 id. 169). All that is required is that the suspension of privileges or administrative discipline be imposed in accordance with a procedure that is basically fair and which grants the student and parent an opportunity to appear informally before the person or body authorized to impose such discipline, to discuss the conduct being reviewed (Appeal of Gaslow, supra; Appeal of Danison, supra; Matter of Watts, 23 Ed Dept Rep 459).

The record before me indicates that petitioner and his parent were twice afforded, but refused, the opportunity to meet with the principal, assistant principal and the district’s assistant superintendent. Petitioner was also afforded the opportunity to attend a special meeting of the board. He attended, presented his arguments both orally and in writing, and acknowledged his guilt. Accordingly, I find that respondent has satisfied its obligation of procedural fairness to petitioner by affording him the opportunity to discuss the conduct which led to the in-school suspension.

Moreover, I find that the penalty imposed was reasonable. Petitioner admitted that he skipped his math classes on three occasions, as charged. Petitioner knew that this behavior could have disciplinary consequences because he had previously received a three-day in-school suspension for cutting study hall four times. A student who cuts his classes disrupts the orderly administration of the school, and, thus, may be disciplined for this conduct (see, Appeal of Eisenhauer, 33 Ed Dept Rep 604), and a five-day in-school suspension for truancy is deemed permissible, particularly where, as here, petitioner does not allege that the alternative education he received was inadequate (see, Appeal of Miller, 35 Ed Dept Rep 451). Further, a summary of petitioner’s disciplinary record reveals that petitioner received at least eleven detentions during the 1997-98 school year, with notations indicating instances of truancy. Under these circumstances, I find no reason to disturb respondent’s decision.