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Decision No. 14,294

Appeal of DEBBIE L., on behalf of CORY L., from action of the Board of Education of the Ausable Valley Central School District regarding student discipline.

Decision No. 14,294

(January 18, 2000)

Darrell L. Bowen, Esq., attorney for petitioner

Stafford, Trombley, Purcell, Owens & Curtin, P.C., attorneys for respondent, Emily L. Pombrio and Dennis D. Curtin, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Ausable Valley Central School District ("respondent") to suspend her son, Cory. The appeal must be dismissed.

This appeal stems from an incident that occurred on June 16, 1997, when the front end of a car Cory was driving struck a teacher, Cheryl Thomas, as Cory exited the parking lot of the Ausable Valley Central High School. According to petitioner, Ms. Thomas stepped in front of Cory’s car to stop him after seeing that he had a passenger in his car, in violation of school rules. Cory claims that he did not see Ms. Thomas at the far right corner of his vehicle, and was unaware that his car had bumped Ms. Thomas, since she did not lose her balance or fall down.

Sometime following the incident, petitioner heard a rumor that her son would be expelled. She phoned the superintendent, John Gratto, who advised petitioner that a hearing was required. Superintendent Gratto conducted a hearing on July 11, 1997, at which petitioner, Cory, two of his friends, his grandmother, Ms. Thomas, and two other teachers were present.

On July 25, 1997, Superintendent Gratto sent a letter to petitioner summarizing the July 11 hearing. The letter further recounted that at 3:30 p.m. on July 11, Superintendent Gratto met with petitioner and Cory to explain his determination that Cory would be placed in the district’s "Thin Ice" program for the first twenty weeks of the 1997-1998 school year. Additionally, Superintendent Gratto advised Cory that, if he exhibited exemplary behavior and maintained an academic average of 80% or higher, he could be released from the "Thin Ice" program after ten weeks. The letter, however, concluded:

This morning the Board of Education President informed me the Board members unanimously disagreed with my decision. They believe that the severity of the incident warranted full suspension from school. Therefore, Cory is suspended from school for the entire 1997-1998 school year. I’m sorry for any inconvenience that this change in decision may cause Cory and you, but that is the decision of the Board of Education.

At some point after the hearing, petitioner retained an attorney, and, on August 25, 1997, filed this appeal. Petitioner argues that both the original "hearing" on July 11 and respondent’s unilateral decision to override the superintendent’s decision were procedurally defective. Petitioner asserts that she never received written notice of the hearing, was never advised of the nature and scope of the hearing or witnesses to be called by the school, or advised of her right to call witnesses and be represented by counsel. Petitioner also contends that respondent’s decision was made without any opportunity for input and without the issuance of a written decision. In addition, petitioner alleges that a one-year suspension is excessive, and that the penalty affected Cory’s participation in athletics, which harmed his chances for college recruitment. Petitioner requests that respondent’s decision be reversed and annulled.

Respondent contends that it afforded petitioner due process because petitioner, Cory and his grandmother attended the superintendent’s hearing, the superintendent read the charges at the start of the proceeding, and petitioner presented and questioned witnesses. Respondent maintains that the penalty was proper because Cory had 46 previous disciplinary referrals. Respondent also argues that petitioner failed to exhaust administrative remedies. Finally, respondent contends that petitioner lacks standing because as of August 21, 1997, Cory resided with his father in Troy, New York, and attended school there, apparently to maintain athletic eligibility. Alternatively, respondent asserts that the matter is moot, since Cory transferred to Troy High School on February 23, 1998.

Pursuant to "276.5 of the Commissioner’s regulations, on September 9, 1997, my Office of Counsel requested additional information from respondent. Specifically, my Counsel’s office requested the written notice to petitioner of the July 11, 1997 hearing; any exhibits introduced at the hearing and the tape of that hearing; respondent's written determination; and any board minutes reflecting respondent's decision. In its September 12, 1997 reply, respondent stated that the superintendent did not provide written notice of the July 11, 1997 hearing, since he provided notice orally to petitioner. In addition, respondent explained that the hearing date was determined after consultation with petitioner, who had previously requested two postponements of the hearing. Furthermore, respondent stated there was no determination of the board of education, since neither petitioner nor Cory had appealed to the board.

On September 16, 1997, I granted petitioner’s request for interim relief directing respondent to admit Cory to the schools of the district, pending a determination in this appeal.

I will first address the procedural issues raised by respondent. Initially, I find that petitioner, as a district resident and as Cory’s mother, has standing to bring this appeal. Petitioner seeks a decision annulling Cory’s suspension from the Ausable Valley High School and seeking his readmission. Accordingly, I decline to dismiss this appeal for lack of standing.

Respondent also argues that the appeal must be dismissed because petitioner failed to appeal the superintendent's decision to the board of education. The record reflects that the superintendent’s initial decision was to place Cory in the "Thin Ice" program. Since petitioner agreed with that disposition, she did not appeal to the board. However, Superintendent Gratto’s July 25 letter indicates that the decision to suspend Cory for the 1997-1998 school year was "the decision of the board of education." Therefore, under the circumstances of this case, I will not dismiss this appeal for failure to exhaust administrative remedies.

However, the appeal must be dismissed because it is moot. On April 6, 1998, Superintendent Gratto submitted an affidavit stating that Cory had transferred to Troy High School as of February 23, 1998. On July 8, 1998, petitioner informed my Counsel’s Office that Cory graduated from Troy High School and would be attending college in the fall. 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 Kainz, 38 Ed Dept Rep 339, Decision No. 14,049; Appeal of Studley, 38 id. 258, Decision No. 14,028; Appeal of Rollins, 38 id. 192, Decision No. 14,012). Where it is impossible for the Commissioner to award any meaningful relief because the person whose rights are to be affected has moved from the district or graduated, the appeal will be dismissed (Appeal of Studley, supra; Appeal of Mangaroo, 37 Ed Dept Rep 578, Decision No. 13,932). In this case, petitioner requested that the Commissioner grant a stay of respondent’s decision and reverse and annul that decision. The stay was granted on September 16, 1997 and Cory has since graduated, leaving no possibility of any meaningful relief.

In light of this disposition, I will not address the parties’ remaining contentions. However, I remind respondent of its obligation to comply with all the requirements of Education Law "3214 and its implementing regulations regarding student suspensions, including the review of superintendent’s decisions.