Appeal of C.Q. and J.Q., on behalf of their son, from action of the Board of Education of the Warwick Valley Central School District regarding student discipline.

 

Decision No. 14,691

(February 22, 2002)

Shaw & Perelson, LLP, attorneys for respondent, Jennifer M. Cottrell, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal their son's suspension from school and request that the Board of Education of the Warwick Valley Central School District ("respondent") be directed to expunge the suspension from their son's record. The appeal must be sustained in part.

Petitioners' son attended respondent's middle school during the 2000-2001 school year. On February 2, 2001, respondent's assistant principal telephoned petitioners stating that he had been informed by another student that, on the morning of January 23, 2001 while at the bus stop, petitioners' son was in possession of a knife and had poked holes with the knife in another student's backpack. Petitioners met with respondent's principal and assistant principal on February 2, 2001. During the meeting petitioners' son admitted to possession of the knife " which he stated that he found on the way to the bus stop. He also admitted to using the knife to poke holes in another student's backpack. The record is in dispute as to whether the other student was wearing the backpack at the time of the incident. Petitioners' son was suspended from school for five days.

By letter dated February 8, 2001, respondent's superintendent of schools informed petitioners that a disciplinary hearing pursuant to Education Law "3214(3) was scheduled for February 12, 2001, to determine whether their son should be suspended from school for an additional period. Petitioners' son was charged with stabbing another student's backpack several times while the student was wearing it, and "engaging two other students with the knife." Petitioners attended the hearing along with their son, respondent's middle school principal and assistant principal and respondent's attorney. Petitioners' son testified at the hearing, as did the principal and assistant principal. Respondent called no student witnesses to testify.

By letter dated February 13, 2001, respondent's superintendent notified petitioners that he had "reviewed the hearing record" and accepted the recommendation that their son be suspended for the remainder of the 2000-2001 school year. Petitioners requested a copy of the hearing record and all documentation pertaining to the charges against their son. On February 23, 2001, petitioners were informed that the tape recording of the February 12, 2001 hearing was too inaudible to copy. Petitioners requested a copy of the tape nevertheless and, subsequently, on April 23, 2001 received a recording that consisted of the words "testing, testing" with nothing more on it.

By letter dated March 7, 2001, petitioners appealed the decision to suspend their son to respondent, alleging a number of procedural irregularities in connection with the February 12 hearing. Thereafter, respondent's superintendent of schools notified petitioner that a re-hearing was scheduled for March 12, 2001, but petitioners declined to attend. By letter dated March 22, 2001, respondent's superintendent notified petitioners that he was in receipt of their appeal to the board of education. The superintendent further stated that, because petitioners did not attend the March 12, 2001 hearing, it had been rescheduled to April 2, 2001. Petitioners' attorney requested a copy of any witness statements and documentation prior to the April 2 hearing, but respondent denied that request. The hearing was ultimately held on April 26, 2001, and petitioners again declined to attend. The hearing officer issued a report and recommendation on April 26, 2001 finding petitioners' son guilty of the charges and recommending his suspension for the remainder of the 2000-2001 school year. On May 31, 2001, petitioners initiated this appeal after respondent failed to respond to their March 7, 2001 appeal from the February 12, 2001 hearing. In this appeal, petitioners challenge the procedures followed in connection with the February 12 hearing and, based on the alleged procedural irregularities, request expungement of their son's suspension from his record.

Petitioners claim that respondent violated their son's due process rights in several respects. First, petitioners assert that they were never notified of their son's due process rights prior to the February 12, 2001 hearing. They also claim that respondent failed to call any student witnesses at the February 12 hearing and that, therefore, petitioners were deprived of their right to cross-examine witnesses. Petitioners also claim that, because of respondent's failure to call student witnesses, the findings of guilt on the charges were unlawfully based on hearsay evidence. Finally, petitioners assert that respondent failed to keep a record of the February 12, 2001 hearing, as required by Education Law "3214(3).

Respondent contends that the appeal from the February 12, 2001 hearing is moot, as a subsequent curative hearing was held on April 26, 2001. Respondent also contends that petitioners failed to appeal the April 26, 2001 hearing and that any appeal at this juncture is time-barred. Finally, respondent asserts that the April 26, 2001 determination that petitioners' son is guilty of the charges is supported by the record and that his suspension for the remainder of the 2000-2001 year was warranted.

Before turning to the merits, I must first address a procedural matter. On July 27, 2001, subsequent to respondent's service of its memorandum of law herein, petitioners filed what purports to be a response to the memorandum. Petitioners request permission to file such response because they were out of the country when they received respondent's memorandum. I note, however, that petitioners never filed their own memorandum of law within the time period prescribed by regulation (8 NYCRR "276.4). More significantly, I note that most of petitioners' purported reply memorandum consists of additional factual allegations. To the extent that petitioners intend to submit such factual allegations in response to respondent's memorandum, there is no authority for such submission. Moreover, petitioners have not provided an affidavit of verification with their additional factual submissions. Therefore, I will not consider petitioners' July 27, 2001 papers as part of the record in this appeal.

The gravamen of this appeal is petitioners' claim that certain procedural due process violations occurred in connection with the disciplinary hearing held on February 12, 2001. Petitioners contend that, based upon those alleged violations, their son's record should be expunged. Petitioners ignored any attempt by respondent's superintendent of schools to address their concerns by scheduling a re-hearing to cure any procedural defects. In this instance, a re-hearing was held on April 26, 2001, which petitioners declined to attend. Petitioners were given an opportunity to attend the curative hearing at which a student witness testified and was available for cross-examination, as was respondent's principal and assistant principal. Moreover, it appears that the re-hearing was held in response to the tape recorder malfunction at the February 12, 2001 hearing. Petitioners assert that the reason they did not attend the April hearing (originally scheduled for April 2) was due to respondent's failure to provide pre-hearing witness statements and documentation. Petitioners cite no authority for such discovery, and indeed there is none (Education Law "3214[3]; Appeal of Seward, 12 Ed Dept Rep 100, Decision No. 8551).

Having offered petitioners an opportunity for a re-hearing and having conducted such hearing on April 26, 2001, I find on these facts that petitioners' challenge to the February 12, 2001 hearing is moot. The Commissioner of Education will not render a decision on a state of facts that no longer exists or that subsequent events have put to rest (Appeal of Doro, 41 Ed Dept Rep ___, Decision No. 14,596; Appeal of Jaski, et al., 40 id. 154, Decision No. 14,446; Appeal of a Student with a Disability, 40 id. 42, Decision No. 14,416). Respondent's superintendent responded to petitioners procedural complaints concerning the February 12, 2001 hearing by scheduling a re-hearing to cure the defects. Petitioners' refusal to attend the re-hearing does not alter the fact that the re-hearing renders petitioners' procedural challenges to the February 12, 2001 hearing moot.

Petitioners did not appeal to respondent from the determination of guilt and penalty of suspension resulting from the April 26, 2001 hearing nor do they raise any challenge to that determination in this appeal. Therefore, the determination to suspend petitioners' son as a result of the April 26, 2001 hearing stands.

Petitioners are entitled, however, to have part of their son's suspension expunged. Implicit in the fact that respondent's superintendent held a re-hearing to cure procedural defects in the February 12, 2001 hearing is a recognition that such procedural errors occurred. Consequently, any suspension imposed upon petitioners' son during the period from February 13, 2001 through April 26, 2001 was improper. Respondent is ordered to expunge such period of suspension from petitioners' son's records. Respondent is further admonished to ensure that all procedural due process requirements are satisfied with respect to future student discipline hearings conducted pursuant to Education Law "3214(3) - including ensuring that electronic recording devices are operating properly before commencing the hearing.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent expunge from petitioners' son's record any reference to his suspension from February 13, 2001 through April 26, 2001.

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