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Decision No. 14,726

Appeal of R.R. and K.R., on behalf of their son B.R., from action of the Board of Education of the Coxsackie-Athens Central School District regarding student discipline.


Decision No. 14,726

(May 20, 2002)


Lewis & Stanzione, attorneys for petitioners, Joseph

Stanzione, Esq., of counsel


Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin and Kathy Ann

Wolverton, Esqs., of counsel


MILLS, Commissioner.--Petitioners appeal the suspension of their son, B.R., by the Board of Education of the Coxsackie-Athens Central School District ("respondent"). The appeal must be dismissed.

During the 2000-2001 school year, B.R. attended the tenth grade at respondent"s high school. On or about May 9, 2001, C.C., a fellow student, filed a complaint against B.R. C.C. alleged that, on May 4, 2001, B.R. had forcible sexual contact with her on two separate occasions. B.R. admitted to having contact with C.C. on May 4, 2001. However, he alleged that the contact was consensual and that it included kissing. There were no eyewitnesses to either of the alleged incidents.

By letter dated May 9, 2001, the principal notified petitioners that B.R. was being suspended from school for five days. The letter further charged B.R. with two incidents of forcible sexual contact. Moreover, the letter informed petitioners that, pursuant to Education Law "3214, a disciplinary hearing would be held on May 15, 2001, to determine whether an additional suspension should be imposed.

Both B.R. and C.C. testified at the May 15th hearing. Petitioners" attorney also called four fellow students and B.R."s mother as witnesses on his behalf. At the conclusion of the hearing, the hearing officer found that the case turned on the credibility of the two primary witnesses, B.R. and C.C. The hearing officer further found that although there were inconsistencies in both B.R."s and C.C."s testimony, C.C."s testimony was credible enough to support the charges. Based on this finding, the hearing officer recommended B.R."s suspension for an additional five days.

The superintendent accepted the hearing officer"s findings and recommendation and petitioners appealed to respondent. On June 19, 2001, petitioners" attorney and the high school principal appeared before respondent. On June 26, 2001, respondent adopted the superintendent"s decision with an amendment to expunge B.R."s record as of July 1, 2002 if B.R. remained free of any further inappropriate contact or harassment referrals during the 2001-2002 school year. This appeal ensued.

Petitioners request a determination that their son"s suspension was arbitrary and capricious and not supported by the record. They also allege that respondent heard inappropriate and prejudicial argument from the principal, which improperly influenced its decision.

Respondent maintains that B.R."s suspension was appropriate and supported by competent and substantial evidence. Respondent also contends that petitioners" initial attempt to commence this appeal was procedurally defective and maintains that this appeal is untimely.

I will first address the procedural issues. An appeal to the Commissioner must be instituted within 30 days of the action or decision complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Schmitt, 39 Ed Dept Rep 617, Decision No. 14,329; Appeal of Phillips, 38 id. 297, Decision No. 14,038). The decision at issue was rendered on June 26, 2001. On July 23, 2001, petitioners attempted to commence this appeal by serving and filing a document entitled "Notice of Intention to Seek Review." By letter dated August 8, 2001, my Office of Counsel returned this document to petitioners" counsel, informing him that it did not conform with the Commissioner"s Regulations in several respects. The letter, however, further advised petitioners" counsel that if a corrected petition was served and filed within two weeks, the date of service would relate back to the original service date of July 23, 2001. Petitioners served and filed a corrected petition on August 21, 2001. Thus, this appeal is not untimely.

The appeal, however, must be dismissed as moot. The Commissioner 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 K.M., 41 Ed Dept Rep ____, Decision No. 14,699; Appeal of N.B., 40 id. ____, Decision No. 14,542; Appeal of N.C., 40 id. ____, Decision No. 14,522). Petitioners" request that B.R."s suspension be overturned and that I find respondent"s determination to be arbitrary and capricious. Petitioners, however, do not seek expungement of B.R."s records. Since B.R. has already served the ten- day suspension, petitioners" request for relief is moot (Appeal of K.M., supra; Appeal of D.C., 41 Ed Dept Rep _____, Decision No. 14,684; Appeal of Camille S., 39 id. 574, Decision No. 14,316).

In light of this disposition, I need not address the parties" remaining contentions.