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Decision No. 14,754

Appeal of V.P., on behalf of her son C.P., from action of the Board of Education of the City School District of the City of Tonawanda regarding student discipline.

Decision No. 14,754

(July 24, 2002)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the City School District of the City of Tonawanda ("respondent") to suspend her son, C.P., from participating in extra-curricular activities. The appeal must be dismissed.

On November 13, 2001, C.P. came to wrestling practice apparently under the influence of alcohol. The J.V. wrestling coach noticed that C.P. smelled of alcohol, had glassy eyes and was speaking slowly. C.P. was escorted by a police officer present in the building to the varsity coach"s office, where he admitted that he had consumed "a couple of beers" before coming to practice. By letter dated November 14, 2001, respondent"s high school principal suspended C.P. from school for three days. On November 20, 2001, a meeting was held with the principal, respondent"s director of athletics and the varsity wrestling coach to discuss C.P."s eligibility to participate in interscholastic sports. At that meeting, C.P. admitted drinking and being under the influence of alcohol. By letter dated November 21, 2001, the principal notified petitioner that C.P. would be ineligible for interscholastic competition for the remainder of the semester as a result of the incident, and that he would be permitted to resume practice with the team on January 2, 2002.

The matter was also referred to respondent"s superintendent for disciplinary action and by letter dated November 16, 2001, petitioner was notified of a November 21, 2001 superintendent"s hearing. At the disciplinary hearing, C.P. admitted drinking alcohol before coming to wrestling practice. The high school principal also testified to his knowledge of the incident. Both petitioner and C.P. declined the superintendent"s invitation to question the principal about his testimony. By letter dated November 27, 2001, respondent"s superintendent notified petitioner that C.P. would be suspended from wrestling practice until January 1, 2002, and wrestling competition for the remainder of the first semester. No further disciplinary penalty was imposed by the superintendent. By letter dated December 17, 2001, respondent"s superintendent informed petitioner that respondent had sustained his determination. This appeal ensued. Petitioner"s request for interim relief was denied on January 17, 2002.

Petitioner alleges a number of due process violations, including the denial of the opportunity to question witnesses at both the informal conference with the principal and at the superintendent"s hearing. She also submits two versions of respondent"s extra-curricular activities policy and alleges that they contain inconsistent penalties for alcohol use. Petitioner also complains that she was never provided with a transcript or minutes from the superintendent"s hearing. For relief, petitioner seeks expungement of her son"s records and his reinstatement in interscholastic activities.

Respondent contends, among other things, that petitioner was provided with due process at every phase of the disciplinary action, and that respondent is under no obligation to furnish petitioner with a copy of the hearing transcript.

Petitioner"s claim for reinstatement must 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 K.M., 41 Ed Dept Rep , Decision No. 14,699; Appeal of N.B., 40 id. 515, Decision No. 14,542). C.P. was suspended from participation in wrestling only until the end of the first semester of the 2001-02 school year. Because the suspension period has expired, the appeal is moot to the extent that petitioner challenges C.P."s athletic suspension (Appeal of K.M., supra; Appeal of Camille S., 39 id. 574, Decision No. 14,316).

The remainder of petitioner"s claims must be dismissed on the merits. Petitioner has the burden of establishing all the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Finkel, 41 Ed Dept Rep , Decision No. 14,619; Appeal of Lilly, 39 id. 601, Decision No. 14,324; Appeal of Trombley, 39 id. 115, Decision No. 14,189). Furthermore, the burden is on petitioner to allege and prove facts upon which relief may be granted, not on respondent to rebut conclusory allegations (Appeal of Finkel, supra; Appeal of Keiling, 25 id. 122, Decision No. 11,517).

I find no merit to petitioner"s claim that she was denied the opportunity to question witnesses. While the imposition of discipline pertaining to a student"s participation in athletics must meet minimal standards of administrative due process, a full hearing pursuant to Education Law "3214(3) is not required (Appeal of Wierzchowski, 39 Ed Dept Rep 682, Decision No. 14,348; Appeal of Latterell, 35 id. 487, Decision No. 13,608). Although no formal evidentiary hearing was required in this instance, respondent afforded petitioner the opportunity to meet with the principal, the wrestling coach and the director of athletics to discuss the situation. Moreover, C.P. readily admitted during that meeting that he had consumed alcohol, a violation of respondent"s substance abuse procedure policy. Under these circumstances, I find that C.P. was afforded sufficient due process.

Education Law "3214(3)(c) provides that no pupil may be suspended in excess of five days unless the pupil and person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil shall have the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil"s behalf. Petitioner has failed to supply any evidence to support her claim that she was denied the opportunity to question witnesses at the superintendent"s hearing. To the contrary, the hearing transcript reveals that both petitioner and C.P. were invited to question the high school principal, but declined to do so.

Further, although respondent has a statutory obligation to maintain a record of the student disciplinary hearing (Education Law "3214[3][c][1]), due process does not impose an affirmative obligation on respondent to provide a copy of the record to petitioner. Petitioner has not introduced any proof that she requested, but was denied access to a copy of the hearing record (Appeal of Vassar, 22 Ed Dept Rep 284, Decision No. 10,962). Under these circumstances I find no due process violation.

Finally, respondent"s superintendent explains that on December 6, 2001 he inadvertently supplied petitioner with a copy of an outdated version of respondent"s substance abuse policy. He further explains that every student was provided with a copy of the updated policy through the mail in August 2001. I note that C.P."s suspension from the wrestling team for the remainder of the semester is consistent with the current version of respondent"s policy. Accordingly, I do not find respondent"s imposition of this penalty to be improper.