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Decision No. 14,947

Appeal of L.D. and M.D., on behalf of their daughters, from action of the Board of Education of the Briarcliff Manor Union Free School District regarding student discipline.


Decision No. 14,947


(August 29, 2003)


Raymond G. Kuntz, P.C., attorneys for respondent, Jeffrey J. Schiro, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal a November 25, 2002 determination of the Board of Education of the Briarcliff Manor Union Free School District ("respondent") to suspend their daughters (hereinafter referred to as "L.D. 1" and "L.D. 2") until the beginning of the second semester of the 2002-2003 school year.  The appeal must be dismissed.

Petitioners" daughters attended Briarcliff High School during the 2001-2002 school year.  On June 12, 2002, the students were suspended for five days as a result of a June 11, 2002 verbal and physical altercation involving two teachers.

By letter dated June 11, 2002 and mailed June 12, 2002, the principal informed petitioners that their daughters were suspended from school for five days, from June 12 until June 18, 2002, and that they were entitled to a due process hearing before him where they could ask questions of the complaining witnesses.  The principal"s letter also informed petitioners that a superintendent"s hearing would be held on June 17, 2002.

The superintendent sent petitioners two separate notices of the June 17th hearing, one for each daughter.  The students were charged with insubordination, inappropriate language, verbal abuse and inappropriate physical contact.

The superintendent"s hearing was conducted on several dates beginning June 19 and ending September 4, 2002.  By decision dated September 27, 2002, respondent"s superintendent found L.D. 1 guilty of four of the five charges against her, but not guilty of threatening to kill the teachers.  He found L.D. 2 guilty of all six charges against her.  After considering their disciplinary records, the superintendent suspended both students until the beginning of the second semester of the 2002-2003 school year.

Petitioners appealed the superintendent"s decision and respondent upheld the decision on November 25, 2002.  This appeal ensued.  Petitioners" daughters returned to school on February 3, 2003 after serving the suspensions.

Petitioners contend that L.D. 2 was grabbed by a teacher, after she improperly asked L.D. 2 to clean unsanitary waste material.  Petitioners seek an order overturning respondent"s disciplinary action; reinstating their daughters to their regularly scheduled classes; requiring respondent to provide petitioners with financial compensation toward their daughters" college education; requiring respondent to cease and desist acts of physical abuse and discrimination; and investigating the principal and superintendent for possible violation of child abuse laws.

Respondent contends that no relief can be granted against the principal and superintendent because they were not properly served.  Respondent contends that it provided petitioners with all procedural safeguards required by law and that the suspensions were not excessive.  Respondent further contends that petitioners" claims of abuse and corporal punishment are baseless and, to the extent they allegedly occurred prior to its disciplinary determination, are moot and time-barred.

The appeal must be dismissed as untimely with regard to petitioners" claims of discrimination alleged to have occurred during the period of 1998 to 2001, because this appeal was commenced more than 30 days from the challenged actions (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 390, Decision No. 14,722; Appeal of Catherine B., 37 id. 34, Decision No. 13,797; Appeal of Miller, 35 id. 451, Decision No. 13,598).

The appeal must also be dismissed as moot to the extent petitioners challenge their daughters" suspensions that ended at the beginning of the second semester of the 2002-2003 school year.  The Commissioner of Education only decides 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 Deborah F., 42 Ed Dept Rep ___, Decision No. 14,813; Appeal of R.R. and K.R., 41 id. 405, Decision No. 14,726; Appeal of Mace, 40 id. 110, Decision No. 14,433).  Petitioners request that the disciplinary action be overturned and that their daughters be permitted to return to school, but do not seek expungement of their records.  Since petitioners" daughters served their suspensions and returned to school on February 3, 2003, petitioners" request for relief is moot (Appeal of Deborah F., supra; Appeal of E.F., 42 Ed Dept Rep 318, Decision No. 14,762; Appeal of K.M., 41 id. 318, Decision No. 14,699).

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10, Appeal of Siwula, 41 Ed Dept Rep 375, Decision No. 14,718; Appeal of L.S., 41 id. 270, Decision No. 14,683; Appeal of Schonfeld, 38 id. 306, Decision No. 14,040).  Petitioners have failed to establish, in the record before me, that their daughters were subject to corporal punishment by school personnel in violation of respondent"s code of conduct.  Likewise, petitioners failed to establish that their daughters were subject to abuse in an educational setting or that respondent"s administrators failed to report incidents of abuse under Article 23-B of the Education Law.  With regard to the June 11, 2002 incident, the record does not support petitioners" allegations that physical force was used by school personnel against their daughters to punish them.  Petitioners" claims of past incidents of abuse, dating back to 1998, must be dismissed as untimely and unsupported by the record.

To the extent petitioners seek an investigation of the principal and superintendent, their claims must also be dismissed.  An appeal to the Commissioner under Education Law "310 is appellate in nature and does not provide for investigations (Appeal of T.M., Sr., 42 Ed Dept Rep ___, Decision No. 14,855; Appeal of S.T., 41 id.""" 348, Decision No. 14,709; Appeal of J.W. and C.W., 41 id. 106, Decision No. 14,629).  Rather, petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of T.M., Sr., supra; Appeal of J.W. and C.W., supra).

Petitioners" claim for financial compensation must be dismissed because the Commissioner has no authority to award monetary damages or reimbursements in a "310 appeal  (Appeal of D.H., 39 Ed Dept Rep 721, Decision No. 14,360; Appeal of Calhoun, 38 id. 542, Decision No. 14,089).

I have examined petitioners" remaining contentions and find them without merit.