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Decision No. 14,484

Appeal of DAVID and CYNTHIA L., on behalf of their son, K. L., from action of the Board of Education of the Guilderland Central School District regarding student discipline.

Decision No. 14,484

(November 9, 2000)

Tobin and Dempf, Esqs., attorneys for petitioners, Kevin A. Luibrand, Esq., of counsel

Hancock & Estabrook, LLP, attorneys for respondent, Renee L. James, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the suspension of their son by the Board of Education of the Guilderland Central School District ("respondent") for a period of one year. The appeal must be dismissed.

At the time of the events precipitating this appeal, K. L. was a 16 year old resident of the Guilderland Central School District who participated in the district’s Vocational Technical Program at the Vocational Technical School of Albany County ("VOTEC center"). Each morning, K. L. was picked up by a Guilderland school bus, taken to Guilderland High School, then driven by a different bus to the VOTEC center. At the end of the day, he again boarded a bus back to the high school, where he waited to be transported home by another bus.

On November 9, 1999, after K. L. was dropped off at Guilderland High School, he entered the school library, and, from approximately 1:55 or 2:00 p.m. to about 2:25 p.m., used the computer terminal designated number 15. He left the library at approximately 2:25 p.m., and boarded a school bus for home. A short time after K. L. left the library, a bomb threat was received by facsimile in the high school office, from a California internet site, indicating that it was sent to the school at 11:27:03 a.m. Pacific Time, or 2:27:03 p.m. Eastern Time. The threat claimed that a total of five bombs had been hidden in the building, and demanded that the high school be closed for the remainder of the week and the following week. School authorities then evacuated the building, and called the local police.

Thereafter, respondent’s chief technology specialist, who was responsible for instructional technology and the district’s computer systems, checked the security logs for the school’s computer system to see if any of the school’s computers had contacted the California web site from approximately 1:30 p.m. to 2:30 p.m. According to his research, computer number 15 was the only one of the school’s computers that contacted that web site during that time period.

The following afternoon, upon K. L.’s arrival at the high school from the VOTEC center, he was escorted by a police officer to the assistant principal’s office, where he denied any involvement in the matter. At some point later that day, he was arrested and arraigned.

K. L. was then suspended from school beginning November 12, and was the subject of a hearing pursuant to Education Law "3214 on December 2 and 3, 1999, before an independent attorney acting as hearing officer. By letter dated December 10, the hearing officer found that K. L. had indeed sent the bomb threat, and recommended his expulsion. On December 14, respondent’s superintendent accepted the hearing officer’s findings and conclusions, and determined that K. L. would be suspended for a period of one year beginning November 12, 1999. Petitioners appealed to respondent, which heard the matter on January 31, 2000, and by a letter dated February 7, 2000, from its president, upheld the superintendent’s recommendation. This appeal ensued. On March 24, I declined to issue a stay in this matter.

The appeal is moot. On September 21, my Office of Counsel contacted the parties’ attorneys to clarify the exact terms of the penalty imposed herein. Respondent’s counsel indicated that respondent’s superintendent had reviewed the matter prior to the beginning of the 2000-2001 school year, and had permitted K. L. to return to school at the beginning of September. It is well established that the Commissioner of Education will only decide matters in actual controversy and will not render a determination on a set of facts which no longer exists or which subsequent events have laid to rest (Appeal of Floramo, 39 Ed Dept Rep 389, Decision No. 14,269; Appeal of Wright, 38 id. 756, Decision No. 14,134; Appeal of Leslie, 38 id. 194, Decision No. 14,013).

Even if I were not dismissing for mootness, I would dismiss the appeal on the merits. At the hearing, K. L. admitted having been in the high school library at computer 15 from approximately 2:00 p.m. to 2:25 p.m. on November 9, 1999, and stated that no one else used that computer during that time period. He admits to accessing only two internet sites:, an e-mail service, and zdtv/, for the entire time that he was on the machine. He denies having accessed the California web site that day, or at any other time. He also indicated that he had subscribed to four magazines dealing with computers, and had built four personal computers himself.

The proof submitted by respondent, relying on the security log for computer 15, shows that during the time K. L. admits he was at that computer, it was used almost exclusively to access, zdtv/, and the California web site. There is no direct proof that the bomb threat originated with computer 15, but there is testimony that none of the other library computers accessed the California web site during the relevant time period.

Petitioners raise objections, including an objection that computer 15 was not in contact with the California web site long enough for K. L. to have possibly prepared a message the length of the bomb threat. However, in testimony elicited by the hearing officer, respondent's chief technology specialist indicated the possibility that the threat could have been composed at an earlier time, saved, and sent during the relevant time period.

In addition, two other students at the VOTEC center testified. One girl testified that two to three weeks before the bomb threat incident, in a lunchroom at the VOTEC center, K. L. asked her if she wanted to call in a bomb threat, but she refused. A second student, who was present during that conversation, confirmed the substance of the conversation, and stated that K. L. said that he wanted to get out of school and that he thought it would be "a funny idea" if he called in a bomb threat. The second student recounted another conversation with K. L. that occurred two days later in which K. L. told her that he knew how to send facsimile messages over the internet.

I am satisfied that the record supports the conclusion of the hearing officer, the superintendent, and respondent and I will not set it aside. Although largely circumstantial, the proof presented at the hearing certainly permitted the hearing officer to draw a reasonable inference that K. L. originated the bomb threat at computer 15 (see, New York Pattern Jury Instructions (Third Ed.) 1:70; People v. Cleague, 22 NY2d 363; People v. Wachowicz, 22 NY2d 369; Matter of Payne, 18 Ed Dept Rep 280, Decision No. 9,840).

With respect to the penalty, I find it within respondent’s discretion (Appeal of Leahy, 39 Ed Dept Rep 375, Decision No. 14,264; Appeal of Joseph F., 39 id. 242, Decision No. 14,226; Appeal of B. B., 38 id. 666, Decision No. 14,113).