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Decision No. 14,403

Appeal of J.Y. and E.Y., on behalf of A.Y., from action of the Board of Education of the Hilton Central School District regarding student suspension.

Decision No. 14,403

(July 19, 2000)

Harris Beach & Wilcox, LLP, attorneys for respondent, David W. Oakes, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Hilton Central School District ("respondent") affirming the suspension of their son. The appeal must be dismissed.

On January 6, 2000, at approximately 8:45 a.m., Les McQuatters, a member of the high school security staff, discovered petitioners' son and another student outside the school building during class time. Petitioners' son was holding a marijuana pipe and lighter. Mr. McQuatters brought the students to the office of Steve Lemon, Director of Security, who contacted the sheriff's office and telephoned Mrs. Young. Petitioners came to school and were present while Mr. Lemon questioned their son who admitted smoking the pipe containing marijuana. Mr. Lemon informed petitioners that their son was suspended for five days.

A superintendent’s hearing was held on January 20, 2000. The hearing officer found petitioners' son guilty of smoking and possessing marijuana on school property and recommended his suspension through the end of the school year. Superintendent Dr. John Cooper adopted the hearing officer’s recommendations. Respondent heard petitioners' appeal on February 29, 2000, and affirmed the superintendent’s decision on March 1, 2000. This appeal ensued. On March 7, 2000, petitioners also requested their son's referral to respondent's Committee on Special Education.

Petitioners object to the long-term suspension imposed on their son. They also contend that respondent has treated their son and other children unfairly over the years and has negligently failed to educate their children.

Respondent contends that the petition fails to contain a clear and concise statement of petitioners’ claim showing that they are entitled to relief. Respondent also states that the guilty finding is supported by competent and substantial evidence and that the penalty is appropriate.

I will first address the procedural issues. Section 275.10 of the Regulations of the Commissioner of Education provides that a petition shall contain a clear and concise statement of petitioners’ claim showing that they are entitled to relief, and a demand for the relief to which they deem themselves entitled. Such statement shall be sufficiently clear to advise respondent of the nature of the claim and of the specific act or acts of which they complain. Where, as here, petitioners are not represented by counsel, a liberal interpretation of the regulation is appropriate, particularly where there is no evidence of prejudice to respondent (Appeal of Miller, 39 Ed Dept Rep 348, Decision No. 14,256; Appeal of Smith, 37 id. 583, Decision No. 13,934). Petitioners make generalized and unsubstantiated claims of bias against their son and other children that do not satisfy the requirements of S275.10. Accordingly, that portion of the petition must be dismissed.

However, petitioners also make the clear assertion that the penalty imposed following the superintendent’s hearing is too harsh. Respondent is able to adequately address that allegation in its answer and does not plead any prejudice. Accordingly, I find that petitioners’ request for relief regarding the penalty imposed is sufficiently set forth in the petition and I decline to dismiss that portion of the petition.

The appeal must be dismissed as moot. The penalty imposed was a suspension for the remainder of the school year. The Commissioner of Education will only consider 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 K.M., 39 Ed Dept Rep 301, Decision No. 14,243; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990). As the 1999-2000 school year has ended, no meaningful relief can be granted and the appeal must be dismissed as moot.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits. A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Joseph F., 39 Ed Dept Rep 242, Decision No. 14,226; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899; Appeal of Bowen, 35 id. 136; Decision No. 13, 491). In this instance, petitioners' son admitted that he smoked marijuana on school grounds and petitioners do not dispute the finding of guilt. Thus, there is no issue that he participated in the objectionable conduct.

However, petitioners dispute the severity of the penalty. In cases of suspension, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Joseph F., supra; Appeal of Hyde, 38 Ed Dept Rep 719, Decision No. 14,125; Appeal of B.B., 38 id. 666, Decision No. 14,113). The test to be applied in reviewing the penalty is whether the penalty imposed was so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of B.B., supra; Appeal of Forestiero, 34 Ed Dept Rep 592, Decision No. 13,419). I find that the penalty imposed in this case is not irrational or unreasonable and is within respondent's discretion. Upon the record before me, including the student's prior disciplinary history, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in finding petitioners' son guilty and suspending him for a semester.

Although petitioners did not raise the issue of notice, I am compelled to comment on respondent’s procedures, which are deficient. Section 3214(3)(b) of the Education Law allows for a suspension of up to five days to be imposed by a school principal. That section provides that:

The board of education, board of trustees, or sole trustee may adopt by-laws delegating to the principal of the district, or the principal of the school where the pupil attends, the power to suspend a pupil for a period not to exceed five school days. In the case of such a suspension by the 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 (emphasis added).

A January 7, 2000 letter to petitioners from Superintendent Cooper refers to action taken by David Dimbleby, Hilton High School Principal, suspending petitioners' son. However, neither party submits any suspension notice from the principal to petitioners. While it may be an oversight, the record is nonetheless devoid of any written notice from the principal to petitioners. Indeed, petitioners and Mr. Lemon both state that Mr. Lemon, the Director of Security, notified petitioners that their son was suspended. The statute clearly provides that the board of education may delegate the authority to suspend a pupil only to the building principal. The statute authorizes no further delegation of that authority (Ross v. Desare, 500 F.Supp. 928 [S.D.N.Y. 1977]; Appeal of Knapp, 39 Ed Dept Rep ___, Decision No. 14,282; Appeal of Tooley, 39 id. 334, Decision No. 14,253).

In addition, although petitioners met with Mr. Lemon, there is nothing in the record indicating that they were given the opportunity to meet with the principal or question complaining witness, Mr. McQuatters, who stated that he was not present when Mr. Lemon spoke to petitioners and their son. Notice of the right to request an informal conference is required under 8 NYCRR "100.2(l)(4). Furthermore, "100.2(l)(4) requires notification in writing, of which there is no evidence in this record. Absent any written notice, there is no way to discern whether petitioners had fair notice of their right to meet with the principal or question the complaining witness as permitted by Education Law "3214. Respondent is admonished to review and revise its suspension procedures to ensure future compliance with the statute and regulation.