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Decision No. 14,433

Appeal of GERALD MACE, on behalf of CHARLES MACE, from action of the Board of Education of the AuSable Valley Central School District regarding student suspension.

Decision No. 14,433

(August 14, 2000)

Stafford, Trombley, Purcell, Lahtinen, Owens & Curtin, attorneys for respondent, Dennis D. Curtin, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the suspension of his son, Charles ("Charlie"), by the Board of Education of the AuSable Valley Central School District ("respondent"). The appeal must be dismissed.

On October 6, 1999, petitioner's son, a nineteen year-old senior at AuSable High School, was one of eight students involved in a physical altercation in the cafeteria. During the altercation, furniture, punches, and lunches flew resulting in physical injury to one student, the loss of several students' lunches and the presence of the New York State Police to restore order. According to respondent, Charlie and five other students attacked two Hispanic students who had transferred into the district the previous day. Written charges were preferred against all eight students.

At his hearing on October 13, 1999, Charlie pled guilty to all charges and specifications against him, namely that he was disorderly, insubordinate, had destroyed student property and had endangered the safety, morals, health or welfare of others in the district. In her decision issued on October 20, 1999, Superintendent Linda Fiacco suspended Charlie for the remainder of the 1999-2000 school year. Petitioner appealed to respondent, who affirmed the superintendent's decision on December 10, 1999. This appeal ensued. Petitioner's request for interim relief was denied on February 9, 2000.

Petitioner alleges that the fight was the culmination of more than a decade of discrimination, racial harassment and civil rights violations against Charlie and his other three children by students and employees of the district. Petitioner claims that Charlie was provoked by racial slurs and that administrators were warned of the impending fight but failed to thwart it. He contends that the October 8, 1999 notice of hearing is fatally flawed because in the letter's second paragraph, which generally described the incident and charges, the name of S.C., one of the other charged students, was inserted rather than Charlie's name. Petitioner contends that since Charlie knew that S.C. had thrown the first punch, he assumed that the more serious charges listed in the notice applied to S.C., not himself, and this influenced his decision to plead guilty.

Petitioner contends further that respondent failed to provide due process during the hearing, that the charges do not comport with respondent's disciplinary policies and that the superintendent read Charlie's name into the record, rather that S.C.'s, without mentioning that she was correcting an error in the written notice. Petitioner also claims that the penalty imposed on Charlie was excessive and disproportionate to that imposed on the other students: three including Charlie received suspensions for the remainder of the school year; three received suspensions of 20, 21 and 30 days, respectively; and two were found by the Committee on Special Education to have a nexus between their disabilities and their behavior. Petitioner asserts that the penalty is inequitable because he claims Charlie did not start the fight, was not the aggressor and acted to protect Principal Peter Atchinson. He also alleges that Charlie's disciplinary record was introduced prematurely at the hearing.

Petitioner requests that the Commissioner reduce the duration of Charlie's suspension, require respondent to adhere to all state laws and district policies, withhold respondent's share of state aid until the district is in compliance with such laws and policies, direct the Inspector General to monitor the district and remove respondent's president.

Respondent asserts that it afforded petitioner substantive due process during the superintendent's hearing. It also contends that the notice of hearing was adequate in that the inclusion of S.C.'s name in the October 8 letter was a mere word processing error since eight sets of disciplinary charges were prepared on that day. The letter was clearly addressed to petitioner, his wife and Charlie, and contained three charges and a total of six specifications, each of which specifically named Charlie. Respondent also asserts that it complied with Education Law "3214 and the penalty imposed was proper.

The appeal must be dismissed as moot. The penalty imposed was a suspension for the remainder of the 1999-2000 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 J.Y. and E.Y., 40 Ed Dept Rep ___, Decision No. 14,403; Appeal of K.M., 39 id. 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. Petitioner challenges the adequacy of the notice of the charges against his son. What constitutes "reasonable notice" will vary with the circumstances of each case (Bd. of Educ., Monticello Central School District v. Commissioner of Education, 91 NY2d 133). The charges need only be sufficiently specific to advise the student and counsel of the activities or incidents that will form the basis of the hearing (Appeal of J.D., 39 Ed Dept Rep ___, Decision No. 14,322; Application of R.S., 38 id. 419, Decision No. 14,065; Appeal of Pinckney, 37 id. 284, Decision No. 13,860). Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings. As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ., Monticello Central School District, supra).

Upon my review of the record, I find petitioner's son was provided sufficiently specific notice to enable the student to prepare and present an adequate defense. As noted above, the notice of written charges was clearly addressed to petitioner, his wife and Charlie, with all specific charges and specifications clearly naming Charlie. Any uncertainty regarding the nature of the charges against Charlie based upon the error in the written charges against him was clarified at the hearing. I also note that petitioner appeared on the scheduled date of the hearing, did not request an adjournment in order to secure additional time to prepare a defense and fully participated in the hearing itself. Under such circumstances, I find the notice sufficient.

Likewise, 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 J.Y. and E.Y., supra; 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). In this instance, Charlie pled guilty to all the charges against him. Thus, there is no issue that he participated in the objectionable conduct.

Petitioner also disputes the severity of the penalty imposed upon his son. In cases of suspension, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of J.Y and E.Y., supra; Appeal of Joseph F., supra; Appeal of Hyde, 38 Ed Dept Rep 719, Decision No. 14,125). 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., 38 Ed Dept Rep 666, Decision No. 14,113; Appeal of Forestiero, 34 id. 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. Charlie's disciplinary record includes 43 referrals including at least one incident of aggressive and threatening behavior. Petitioner claims that only seven of these infractions are listed in respondent's discipline code, and one is attributed to "Trevor," not Charlie. However, he does not dispute the previous violent incident. Superintendent Fiacco avers that she did not find credible Charlie's statement that he had been provoked by racial slurs because the alleged slurs occurred more than two hours before the incident took place. Nor did she credit his statement that he had pushed Principal Atchinson out of the way to protect him. She also noted that Charlie neither showed remorse nor took any responsibility for his actions. 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 petitioner's son guilty and suspending him for the remainder of the school year.

While I have considered petitioner's remaining arguments and find them without merit, I remind respondent to remain vigilant in order to maintain a school environment free of discrimination.