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Decision No. 14,916

Appeal of D.T., on behalf of her son J.W., and M.M., on behalf of her son E.B., from action of the Board of Education of the City School District of the City of Glens Falls regarding student discipline and an athletic suspension.



August 12, 2003


Bond, Schoeneck & King, L.L.P., attorneys for petitioners, Hermes Fernandez, Esq., of counsel


Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Lawrence Paltrowitz, Esq., of counsel


MILLS, Commissioner.--Petitioners challenge the penalty imposed upon their sons by the Board of Education of the City School District of the City of Glens Falls ("respondent").  The appeal must be dismissed.

In the fall of 2002, J.W. and E.B. attended the tenth grade at respondent"s high school and were members of the junior varsity football team.  On the afternoon of September 23, 2002, an incident occurred prior to football practice, during which several students on the team jumped on a freshman teammate, piling on top of him.  The freshman student complained about the incident to school authorities.

At approximately 3:30 p.m., the assistant principal/athletic director learned of the incident and arrived at the practice field to investigate.  He interviewed the complaining student along with his father, as well as petitioners" sons and other team members.  During those interviews, more than one student athlete told the assistant principal/athletic director that several members of the team had decided to "jump on" the freshman to discipline him because he had been ejected from the previous weekend"s football game.  After various members of the team admitted to ridiculing, hitting, slapping and jumping on the complaining student, the assistant principal/athletic director concluded that the incident constituted hazing, a physical attack and verbal harassment in violation of school policies.  In separate interviews with petitioners" sons, he accused each of them of hazing  and stated that the boys could be suspended from school and the police could be called.  In his interview, J.W. admitted to jumping on, holding, and hitting the complaining student once or twice.  E.B. admitted to jumping on, grabbing and slapping the complaining student.

During the evening of September 23, 2002, the assistant principal/athletic director telephoned petitioners, notified them of the incident and told them that disciplinary action would be imposed against their sons.  On September 26, 2002, J.W. hand delivered a letter to the assistant principal/athletic director, apologizing "to my coaches and teammates for letting them down and being ignorant," admitting "that my actions have been dumb, foolish and unacceptable," but arguing that "this was just rough housing, not hazing" and asking that "personal apologies, detention, game suspensions and community service" be imposed as discipline rather than "school suspension."  Later that day, the assistant principal/athletic director sent a letter to petitioners and the other parents of student athletes involved in the incident, informing them of the discipline being imposed, which included suspension from four games and ten days of after-school detention.  In his September 26, 2003 letter, the assistant principal/athletic director described the incident as involving "verbal and physical harassment of another member of the team."

A hand-delivered letter was received by the principal on September 26, 2002 from petitioner D.T., appealing the discipline imposed by the assistant principal/athletic director.  The principal met with J.W."s parents on September 30, 2002 and informed them by letter dated October 2, 2002, that he would uphold the disciplinary measures.  On October 4, 2002, he discussed the matter with them further by telephone.  J.W."s parents delivered a letter to the principal on October 8, 2002, requesting a detailed written description of the allegations and the rules he violated, as well as a stay of further discipline and a meeting with the assistant principal/athletic director and superintendent.  The principal responded that same day with a letter suggesting they contact the superintendent to appeal the disciplinary decision.

The superintendent held a hearing on October 10, 2002, at which petitioners and their sons appeared and were represented by counsel.  One piece of evidence was a letter signed by all seven student athletes who were disciplined, including petitioners" sons, apologizing for their "wrong" actions, acknowledging the punishment was "fair," but appealing to play in the last game of the season in return for other substituted measures of discipline.  J.W. testified that, "I went out there just like everybody else, just a "hog pile," happens all the time, and I probably smacked his [backside] twice.  I barely even touched him.  He was laughing the whole time.  He was trying to get people off him, saying stop it...."  E.B. testified that, "I went in and laid on the pile for a few seconds, got up."  Both J.W. and E.B. denied saying anything to the complaining student during the incident, but agreed that the testimony of assistant principal/athletic director was accurate that E.B. made a statement on September 23, 2002 that he "grabbed and jumped on him and slapped him" and that J.W. admitted..."holding him...hit[ting] him once or twice...[and] being part of that jumping on...."  At the conclusion of the hearing, the superintendent denied petitioners" request for a stay of the discipline which would have permitted their sons to play in games that night and the following week.  He also announced his decision upholding the original disciplinary action. 

Petitioners appealed to the board of education at its meeting on October 16, 2002.  The president of the board of education confirmed the board"s decision by letter dated October 17, 2002, that the disciplinary action was justified and appropriate.  Petitioners commenced this appeal, seeking an order expunging the discipline from their sons" records and vacating the discipline imposed by respondent.

Petitioners contend that neither "hazing" nor "verbal and physical harassment" are identified as offenses in respondent"s Code of Conduct and that the record contains no evidence to support a finding of guilt on either charge.  Petitioners admit that respondent"s Athletic Guide prohibits "hazing" and warns that "a violation of the hazing policy will result in disciplinary action which may include suspension or removal from the team" but argue that the term is not defined.  Petitioners contend that there is no evidence that their sons" involvement was premeditated or included any verbal communication with the complaining student.  Petitioners contend further that respondent unfairly imposed the same discipline on all students who admitted participating in the "hog pile" without consideration of their sons" unblemished records, including a student who individually tackled and performed pelvic thrusting on the complaining student.  Petitioners also contend that the penalty imposed is not authorized by respondent"s Code of Conduct.  Petitioners allege that the discipline was improperly imposed immediately, before an appeal or additional rights were provided.  Petitioners also allege that their sons were denied any meaningful appeal, either to the principal or to the superintendent because they consulted with one another and collaborated on the penalty to be imposed.

Respondent contends that the appeal is moot because the students have served the discipline imposed.  Respondent contends that petitioners are not entitled to an expungement of their sons" records because they were provided due process, their sons admitted to physically hitting, slapping and jumping on the complaining student, and they voluntarily submitted letters agreeing in writing to the discipline imposed.  Respondent contends further that Education Law "3214 does not apply because the students were not suspended from school and that a board of education has broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and that the disciplinary action in this case was imposed consistent with that authority.

I agree that the appeal is moot to the extent petitioners seek to vacate the disciplinary action because the students have served the discipline imposed by respondent.  The Commissioner will only decide 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 N.C., 42 Ed Dept Rep ___, Decision No. 14,794; Appeal of R.R. and K.R., 41 id. ___, Decision No. 14,726; Appeal of Huber, et al., 41 id. ___, Decision No. 14,676).  The appeal is not moot, however, insofar as petitioners seek expungement of the disciplinary suspension from their sons" records (Appeal of N.C., supra; Appeal of K.M., 41 Ed Dept Rep ___, Decision No. 14,699; Appeals of M.S. and M.D., 41 id. ___, Decision No. 14,687).

In an appeal to the Commissioner of Education, petitioner has the burden of establishing the facts upon which relief is requested (8 NYCRR "275.10; Appeal of V.P., 42 Ed Dept Rep ___, Decision No. 14,754) and the burden of demonstrating a clear legal right to the relief sought (Appeals of T.M., Sr., 42 Ed Dept Rep ___, Decision No. 14,855).  A board of education has broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it can be shown that the board has abused its discretion, its policy will be upheld (Appeal of Wright, 38 Ed Dept Rep 756, Decision No. 14,134; Appeals of Cynthia and Robert W. and Melani and James H., 37 id. 437, Decision No. 13,899; Appeal of Catherine B., 37 id. 34, Decision No. 13,797).

Petitioners claim that respondent did not afford their sons appropriate due process before imposing discipline is unfounded.  Suspension of student privileges to participate in extracurricular activities and events are not governed by Education Law "3214, which requires procedures for out-of-school suspensions, including, interalia, notice and an informal conference if less than five days and a hearing for an out-of-school suspension in excess of five days.  In contrast, the procedures governing suspension of student privileges or the imposition of administrative discipline 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 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).

Respondent"s administrators provided more than one opportunity for petitioners to informally discuss their sons" participation in the September 23rd incident and, although not required, held a formal evidentiary hearing at petitioners" request on October 10, 2002, producing both the assistant principal/athletic director and the principal for cross-examination.  Moreover, at the hearing, petitioners" sons readily admitted participating in the September 23rd incident by jumping on the complaining student, constituting "an act of violence (ex. hitting) upon a student or other person lawfully on school property" in violation of respondent"s code of conduct listed in the  student handbook.  Furthermore, evidence at the hearing included a letter signed by petitioners" sons apologizing for their actions and expressing a willingness to accept other disciplinary measures as a substitute for one game suspension.

While the terms "hazing" and "verbal and physical harassment" were used to describe the incident, the act of hitting and jumping on the complaining student was prohibited by respondent"s code of conduct and admitted by petitioners" sons.  In addition, the testimony of the assistant principal/athletic director and principal established that an independent review was provided of the discipline imposed at more than one administrative level.  Finally, because no academic suspension was imposed, "3214 procedures did not apply in this case.  Under these circumstances, I find that petitioners" sons were afforded sufficient due process.  Accordingly, I do not find respondent"s imposition of the penalty to be improper.

I have considered the parties remaining contentions and find them to be without merit.