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Decision No. 14,487

Appeal of SANDRA L. DENIS, on behalf of NICHOLE L. SHELLY, from action of the Board of Education of the Potsdam Central School District and Superintendent William Kennedy regarding student discipline.

Decision No. 14,487

(November 27, 2000)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Marc H. Reitz and Marina L.C. Bottone, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges a determination of the Board of Education of the Potsdam Central School District ("respondent board") and Superintendent William Kennedy imposing a one-day in-school suspension on her niece, Nichole Shelly, and revoking her senior privileges. The appeal must be dismissed.

At the time of the events precipitating this appeal, Nichole Shelly lived with petitioner, who is her aunt, and petitioner’s husband. On Friday, January 28, 2000, Nichole did not attend school. Patricia Burnap, the high school nurse, stated that she called petitioner’s home and was advised by petitioner’s husband that Nichole had left for school but said she had a headache and might go to her father’s house instead. Ms. Burnap subsequently called petitioner at work who indicated that she was unaware that Nichole had not gone to school and that she would address the matter when she got home.

On Monday, January 31, 2000, Nichole reported to school with a written excuse from petitioner stating that she had been absent Friday with a headache. She was directed to meet with the principal, Mrs. Hunt, who asked her to explain her absence. Apparently Mrs. Hunt was investigating the absences of a number of seniors who had failed to attend school on January 28th to attend the "Snow Bowl," a private winter sports event. Nichole told Mrs. Hunt that she had been absent because she was sick with a headache. The principal concluded that Nichole had been truant and assigned her to in-school suspension for the day. Mrs. Hunt called petitioner to inform her that Nichole was being disciplined and mailed her a written notice stating that, in addition to the in-school suspension, Nichole would not be eligible for senior privileges until after Easter break.

At petitioner’s request, she and Nichole met with Mrs. Hunt and the Superintendent, Mr. Kennedy, on February 4, 2000. Nichole acknowledged that she had not attended school on January 28th and stated that she had gone to her boyfriend’s mother’s house because she was ill. Petitioner argued that because she approved of this arrangement and had written Nichole an excuse, it was improper for Mrs. Hunt to discipline Nichole.

By letter dated February 10, 2000, Mr. Kennedy informed petitioner that he had decided to uphold the discipline imposed by Mrs. Hunt. He stated that the school nurse had made two phone calls to check on Nichole’s whereabouts and that neither petitioner nor her husband knew that Nichole was at her boyfriend’s mother’s home. He rejected petitioner’s contention that Mrs. Hunt was punishing Nichole for another unrelated incident and found that withholding privileges is a reasonable penalty that does not compromise academic endeavors.

Petitioner then made a written request for "a full hearing" before respondent board. By letter dated March 14, 2000, board president Maureen Prahl advised petitioner that respondent board would review Nichole’s discipline at its March 28, 2000 meeting and that she could submit any information she wished the board to consider but could not appear at the meeting.

In response to a request for information, respondent’s attorneys advised my Office of Counsel that Mr. Kennedy explained Nichole’s discipline at respondent board’s March 28, 2000 meeting and that the board took no formal action on the matter. This appeal ensued. Petitioner’s request for interim relief was denied on April 13, 2000.

Petitioner alleges that respondents engaged in an excessive and abusive use of discipline and denied her and Nichole due process. She argues that respondents failed to follow the district’s written policy, which states that a student will not begin serving an in-school suspension until the day after the suspension is imposed. She asks for the expungement of the truancy from Nichole’s record and the restoration of her privileges. Petitioner also asks for the placement of a letter of reprimand in respondent Kennedy’s "permanent file" stating that he permitted subordinates to handle this matter irresponsibly and capriciously. Finally, she asks me to recommend that respondent board follow its policy manual and treat each student "individually and with fundamental fairness."

Respondents assert that the appeal is untimely and has become moot. Respondents also argue that there was competent and substantial evidence to support the conclusion that Nichole was truant from school on January 28, 2000, that the same penalty was imposed upon all students who were truant that day and that Nichole’s discipline was neither unreasonable nor excessive. Respondents further argue that petitioner and Nichole were afforded all the process they were due because in-school suspensions do not give rise to a right to a full disciplinary hearing under Education Law "3214. Respondents concede that they did not follow the district’s written policy and state that their policy is under review.

Nichole served her in-school suspension on January 31, 2000. The period during which she was ineligible for senior privileges ended when students returned to school after Easter break. By letter dated October 4, 2000, respondents advised my Office of Counsel that Nichole graduated in June 2000. The appeal therefore must be dismissed as moot. 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 Debbie L., 39 Ed Dept Rep 505, Decision No. 14,294; Appeal of Kainz, 38 id. 339, Decision No. 14,049; Appeal of Studley, 38 id. 258, Decision No. 14,028). Where it is impossible for the Commissioner to award any meaningful relief because the person whose rights are to be affected has graduated, the appeal will be dismissed (Appeal of Debbie L., supra).

Because the appeal is dismissed as moot, I need not address the parties’ remaining contentions. I note, however, that in-school suspensions are not governed by Education Law " 3214, which sets forth a student’s right to a hearing prior to the imposition of an out-of-school suspension in excess of five school days. Procedures governing in-school suspensions need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of Michael J.A., 39 Ed Dept Rep 501, Decision No. 14,293; Appeal of Forster, 31 id. 443, Decision No. 12,693). Nichole’s in-school suspension began on Monday, January 31, 2000. Mrs. Hunt spoke with Nichole about her conduct that morning and called petitioner. She likewise mailed petitioner written notice of the in-school suspension. Petitioner and Nichole met with Mrs. Hunt and Mr. Kennedy on February 4th. The superintendent gave petitioner a written explanation of his reasons for upholding the discipline. Petitioner’s letter outlining her objections was forwarded to respondent board. Thus, petitioner discussed Nichole’s conduct and the penalty with the person authorized to impose the discipline, as well as those authorized to review the discipline. Accordingly, petitioner and Nichole were afforded all of the procedural protections to which they were entitled.