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Decision No. 14,423

Appeal of DALE C., on behalf of STEPHEN C., from action of the Board of Education of the Somers Central School District regarding student discipline.

Decision No. 14,423

(August 4, 2000)

Peter Carparelli, Esq., attorney for petitioner

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, Stephen, by the Board of Education of the Somers Central School District ("respondent"). The appeal must be dismissed.

In April 1999, Stephen was a 17 year-old senior at Somers High School. On Friday, April 30, 1999, a fire alarm sounded at the high school as a result of a fire that began in the building somewhere between 10:00 - 10:30 a.m. The entire school population of approximately 655 students, including a wheelchair-bound student, was forced to evacuate the high school.

By letter dated May 3, 1999, Superintendent Richard L. Brodow charged Stephen with arson, endangering the health and safety of the entire high school, and causing property damage in excess of $100,000 in violation of Education Law "3214 and respondent's Rules and Regulations for Maintenance of Public Order on School Property. Dr. Brodow presided over a superintendent's hearing on May 7, 1999. Assistant Principal Vincent Carella testified that after the evacuation, a staff member informed him that Stephen might have knowledge about the fire. Mr. Carella proceeded to the Primrose School, where the evacuated students had been placed, to look for and question Stephen. He testified that Stephen questioned him about the fire before he even had a chance to ask Stephen any questions, but Stephen ultimately denied having knowledge of the fire.

Mr. Carella then read into the record a certified true copy of a statement Stephen gave to the State Police on the day of the fire:

. . . I pulled out a piece of paper which had a girls [sic] name and phone number on it and I lit it with my lighter. When the piece of paper burned towards the end I dropped the piece of paper into the recycle bin. I did not intend to burn the school down and I was upset when I realized how bad the fire got. I then ran down the stairs and caught up with my friends. They did not have anything to do with this.

The head custodian and Assistant Superintendent Kenneth Crowley also testified about the commotion and damages caused by the fire. Petitioner's counsel neither cross-examined respondent's witnesses nor presented witnesses. He also did not object to the introduction of the police statement.

Superintendent Brodow found Stephen guilty and expelled him from Somers High School. Since Stephen was over the age of compulsory education, Dr. Brodow did not order home tutoring or any other form of alternative instruction for him. In response to a question from petitioner's counsel (a different attorney from the attorney of record in this appeal), Dr. Brodow stated that Stephen would not be allowed to take final exams. Petitioner appealed to respondent on May 11, requesting that Stephen be allowed to receive home tutoring, take his final exams, and receive his high school diploma. Respondent upheld the superintendent's decision on May 18, 1999. This appeal ensued. Petitioner's request for interim relief was denied on June 9, 1999.

Petitioner claims that the police statement is not reliable because the witnessing officer did not testify at the superintendent's hearing and was not subject to cross-examination; the evidence does not sustain the determination of guilt; an arson charge requires intent, which was not proven; and the penalty of expulsion without the opportunity to take final exams is excessive. Petitioner states that Stephen has already been accepted at a college for the 1999-2000 school year on the condition that he receives a high school diploma. Petitioner asserts that by denying Stephen home-tutoring and the opportunity to take final examinations, respondent is denying him a high school diploma. Petitioner requests that the determination of guilt be reversed, that Stephen be allowed to continue his education in an alternative setting, take his final exams either at school or in an alternative setting, and receive a high school diploma.

Respondent asserts that the evidence presented at the hearing supports its determination that Stephen was guilty of the conduct charged as well as the penalty imposed upon him, and notes that petitioner's counsel did not object to the evidence submitted. Respondent also contends that the appeal is moot.

The appeal must be dismissed as moot. 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 a Student with a Disability, 38 Ed Dept Rep 91, Decision No. 13,990; Appeal of Schuler, 37 id. 512, Decision No. 13,915). Petitioner requests that Stephen be allowed to take his final exams for the 1998-1999 school year. In denying petitioner's request for interim relief, I have already ruled on the relief sought (Appeal of L.M., 36 Ed Dept Rep 56, Decision No. 13,654). Consequently, the appeal must be dismissed as moot.

Even if the case 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 (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133; Appeal of Oliver, 39 Ed Dept Rep ___, Decision No. 14,392; Appeal of Joseph F., 39 id. 242, Decision No. 14,226). In this case, Stephen admitted that he dropped a lit piece of paper in the recycle bin. Based on this admission, the determination of guilt is beyond challenge (Appeal of Eddy, 36 Ed Dept Rep 359, Decision No. 13,748).

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241; Appeal of Joseph F., supra). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board (Appeal of Aldith L., supra). A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances, such as where the student exhibits "an alarming disregard for the safety of others" and where it is necessary to safeguard the well-being of other students (Appeal of McNamara, 37 Ed Dept Rep 326, Decision No. 13,871; Appeal of Osoris, 35 id. 250, Decision No. 13,531; Appeal of Nathaniel D., 32 id. 67, Decision No. 12,760). There can be no question that the circumstances in this case meet those criteria. Whatever Stephen's intent, the result of his actions, which occurred while school was in session, was a fire causing at least $100,000 worth of damage and endangering 655 students who were forced to evacuate the building. Moreover, he made absolutely no effort to mitigate the potential damage, but rather merely "ran down the stairs and caught up with [his] friends." Upon the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in finding petitioner guilty of the offense charged and imposing a penalty of expulsion from school.

In light of this disposition, I need not address petitioner's remaining arguments.