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Decision No. 14,684

Appeal of D.C., on behalf of her son R.C., from action of the Board of Education of the Brewster Central School District and Dr. Mark S. Lewis, Superintendent, regarding student discipline.

Decision No. 14,684

(February 13, 2002)

Monteleone & Monteleone, attorneys for petitioners, Anthony Monteleone, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, attorneys for respondents, Stuart S. Waxman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Brewster Central School District ("respondent board") and Dr. Mark S. Lewis, Superintendent, to suspend her son, R.C., for the remainder of the 2000-2001 school year, and requests the expungement of the suspension from R.C.'s record. The appeal must be dismissed.

On March 27, 2001, R.C., an eleventh grade student, was involved in an altercation with another student, G.E., who suffered a bloody nose and mouth. The fight took place on the tennis court parking lot at Brewster High School. R.C. was charged with "endangering the health, safety and welfare of himself and others in that he assaulted another student on school grounds." On April 2, 2001, Dr. Lewis presided at a hearing pursuant to Education Law "3214 at which R.C., his father and counsel appeared, along with the Assistant Principal of Brewster High School and four witnesses. By decision dated April 2, Dr. Lewis found R.C. guilty of the charge against him and suspended him for the remainder of the 2000-2001 school year. Dr. Lewis also directed the high school principal to arrange home studies for R.C. during his suspension. Petitioner appealed to respondent board, which affirmed Dr. Lewis' decision on May 23, 2001. This appeal ensued.

There is no dispute that an altercation between R.C. and G.E. took place on March 27, 2001. Petitioner asserts, however, that G.E. initiated the fight, and that both students participated in it. Petitioner contends that Dr. Lewis' determination is erroneous, based on hearsay evidence and is contrary to the student handbook. She also contends that the punishment is excessive and arbitrary because G.E. received no punishment and because Dr. Lewis based his determination on information outside the record. She further asserts that the alternative instruction provided R.C. was inadequate and untimely. Petitioner seeks reversal of the superintendent's decision, expungement from R.C.'s record and summer school or extra tutoring for R.C. to complete his junior year.

Respondents assert that the appeal is untimely; the district had no obligation to provide R.C. with alternative instruction since he was over the age of compulsory education; the suspension was based on competent evidence; and the penalty was reasonable.

I will first address several procedural issues. On September 10, 2001, petitioner submitted a copy of G.E.'s medical record for inclusion in the appeal record. This record was not produced at the hearing and was submitted without prior permission of the Commissioner of Education (8 NYCRR "276.5). Therefore, I have not considered it in making my determination (Appeal of Lilker, 39 Ed Dept Rep 614, Decision No. 14,328).

An appeal to the Commissioner of Education must be commenced within 30 days of the action or decision complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The record indicates that respondent board's determination dated May 23, 2001 was delivered to petitioner on May 25, 2001 and was received by petitioner's attorney on or about May 28, 2001. Petitioner initially attempted to commence this appeal on or about July 6, 2001, but my Counsel's Office rejected it for lack of personal service and notice in accordance with the Commissioner's regulations. Petitioner did not properly commence this appeal until July 17, 2001, some 55 days after respondent's final determination. The appeal, therefore, must be dismissed as untimely.

Petitioner requests that I excuse her delay because her attorneys were unaware of the 30-day requirement and she was waiting for R.C.'s exam results to buttress her claim that the alternative instruction provided by the district was inadequate. She also requests that I excuse her delay in the interests of justice because of the alleged grievous errors in the conduct of the hearing. Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Prentice, 38 Ed Dept Rep 736, Decision No. 14,130). I find no unusual circumstances to excuse the delay in this instance especially since it appears that petitioner was represented by counsel as early as April 2 at the superintendent's hearing (Appeal of Mayer, 39 Ed Dept Rep 195, Decision No. 14,212). Nor do I find petitioner"s assertion that she was waiting for exam results or the nature of respondents' alleged errors sufficient cause to excuse the delay.

Except to the extent that petitioner seeks expungement of R.C."s records, the appeal must also be dismissed as moot. The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of D.H., 41 Ed Dept Rep ___, Decision No. 14,640; Appeal of N.B., 40 id. ___, Decision No. 14,542). The penalty imposed was suspension for the rest of the 2000-2001 school year, which R.C. has already served. Thus, to the extent that petitioner seeks to challenge the discipline imposed by respondent, the appeal must be dismissed as moot (Appeal of D.H., supra; Appeal of Camille S., 39 Ed Dept Rep 574, Decision No. 14,316). For the same reason, the appeal is also moot to the extent that petitioner requests relief on her claim that respondent has failed to provide R.C. with adequate alternative education during, and after, the suspension period (Appeal of Harlan, 40 Ed Dept Rep ____, Decision No. 14,488; Appeal of Camille S., supra).

Even if the appeal were not dismissed on procedural grounds, I would dismiss it 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 C.D., 41 Ed Dept Rep ___, Decision No. 14,642; Appeal of Aldith L., 39 id. 291, Decision No. 14,241). A hearing officer may draw reasonable inferences if the record supports the inference (Board of Education of Monticello Central School District v. Commissioner of Education, supra; Appeal of Aldith L., supra; Appeal of Uebel, 38 Ed Dept Rep 375, Decision No. 14,058)). Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (Gray v. Adduci, 73 NY2d 741; Eagle v. Paterson, 57 NY2d 831; Appeal of Hamet, 36 Ed Dept Rep 174, Decision No. 13,692).

At the hearing, Assistant Principal Stack stated that on March 27, he was informed that there was an assault in the tennis court parking lot after school. Proceeding to the parking lot, he saw a student, later identified as G.E., walking towards him with blood on his face. G.E. told Mr. Stack that R.C. had "beaten him up." Mr. Lewis Lombardo, a hall monitor, testified that he saw R.C. punch G.E. in the face and stomach, and saw G.E. on the ground. He did not see what preceded those punches or how G.E. ended up on the ground. Deputy Francis Christian of the Putnam County Sheriff's Department, who is assigned to the high school as a resource officer, introduced pictures of G.E. that he took following the incident. Those pictures show injuries to G.E.'s face. Deputy Christian also provided written statements of two students, S.D. and L.B., who stated that they had seen the incident. Dr. Lewis accepted those statements into evidence over petitioner's counsel's objections.

Two other students testified on R.C.'s behalf. S.W. stated that R.C. and G.E. exchanged words at lunchtime and agreed to meet after school in the tennis parking lot. S.W. did not observe the actual fight, but did observe G.E. bleeding. F.P also testified for petitioner that he heard both R.C. and G.E. say they wanted to fight, saw them push each other, saw G.E. try to get R.C. in a headlock, saw R.C. and G.E. fall to the ground together, saw R.C. punch G.E. while he was on the ground, and then saw R.C. get off G.E. and walk away. G.E. did not testify, but petitioner did not subpoena him or request an adjournment to do so. R.C. did not testify on his own behalf.

Before a student is suspended for more than five days, he has a right to a fair hearing that includes the right to cross-examine witnesses against him (Education Law "3214(3)(c)(1); Appeal of Coleman, 41 Ed Dept Rep ___, Decision No. 14,628; Appeal of Parker, 34 id. 379, Decision No. 13,351). By permitting the district to introduce written statements of two students who allegedly witnessed the incident in lieu of their live testimony, Dr. Lewis deprived petitioner of the opportunity to cross-examine the students in question (see, Appeal of Coleman, supra; Appeal of Parker, supra). Although Dr. Lewis based his determination of guilt in part on these depositions, there is sufficient evidence to sustain the charges based upon the live testimony presented during the hearing. Thus, I find his error in relying in part on the written statements harmless. However, I remind respondents that, in a student disciplinary hearing, it is improper for the hearing officer to consider a witness"s written statement unless the witness is available for cross-examination.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of C.D., 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 C.D., id.). Dr. Lewis based his determination in part on the written statements from S.D. and L.B. that should have been excluded from the record. He concluded that R.C. had continued to punch G.E. after he was down on the ground and "disarmed." I find this conclusion unsupported by the record. However, I also find that a suspension for the remaining 2" months of the school year is not excessive for fighting, especially in light of G.E.'s injuries and R.C.'s disciplinary record. Thus, I find that the penalty was not so excessive as to warrant the substitution of my judgment for that of respondent board.

In light of this disposition, I need not address the parties' remaining contentions. I note, however, that respondent board was not obligated to provide alternative instruction to R.C. since he was over the age of compulsory education (Education Law ""3205 and 3214[3][e]).