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Decision No. 15,132


Appeal of V.L., on behalf of her son J.L., from action of the Board of Education of the Huntington Union Free School District regarding student discipline.

Decision No. 15,132


(November 5, 2004)


William G. Ripp, Esq., attorney for petitioner


Guercio & Guercio, attorneys for respondent, Barbara P. Aloe, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the suspension of her son, J.L., by the Board of Education of the Huntington Union Free School District (�respondent�).  The appeal must be dismissed.

During the 2003-2004 school year, J.L. was a junior in respondent�s high school.  By letter dated November 3, 2003, the high school principal notified petitioner�s husband that J.L. was suspended for five days for possessing marijuana and �3 dangerous instruments, to wit, 3 syringes with needles.�  By letter also dated November 3, 2003, respondent�s superintendent notified petitioner and her husband of a superintendent�s hearing on charges that J.L. had endangered the safety, health and welfare of himself and/or others and was insubordinate for possessing marijuana and dangerous instruments while on school property on October 31, 2003, in violation of school rules and policies.

On November 7, 2003, petitioner, her husband and J.L. appeared without counsel for the scheduled hearing.  Prior to the commencement of the hearing, they met with respondent�s attorney, who advised them that in light of J.L.�s arrest for possession of marijuana and hypodermic needles, the district would agree to a settlement of the charges.  According to respondent�s attorney, J.L. and his parents agreed to waive their rights to a hearing and accept a five-month suspension from school from November 7, 2003 to April 16, 2004, to coincide with the end of the grading period.  The attorney informed J.L. and his parents that the district would not provide home tutoring to J.L. during the suspension period because he was beyond compulsory school age.

Thereafter, the hearing officer commenced the hearing on the record.  The two November 3 letters were introduced as evidence and the charges were read into the record.  J.L. and his parents were informed of their rights concerning the hearing and appeal process.  Respondent�s attorney then informed the hearing officer that J.L. and his parents had �agreed and [had] elected to waive their rights to a hearing, and the rights that attach to a hearing, and [had] agreed and elected, in lieu of a hearing, to accept a suspension from attendance effective immediately and continuing up to and including April 16th, 2003 [sic].�  All three responded �yes� when asked if they were entering into this agreement and disposition �voluntarily, knowingly, and without coercion.�

By letter to respondent dated November 26, 2003, petitioner�s attorney appealed the length of the suspension as excessive and requested a stay permitting J.L. to return to class.  The attorney apparently wrote a second letter to respondent on December 9, 2003, but that letter is not in the record before me.  By letter dated January 14, 2004, the superintendent informed petitioner�s attorney that at its January 12, 2004 regular meeting, respondent upheld the disposition of the superintendent�s hearing and that J.L.�s suspension would remain in effect through April 16, 2004.  This appeal ensued.  Petitioner�s request for interim relief was denied on February 12, 2004.

Petitioner contends that syringes should not be classified as a weapon, and maintains that J.L. did not threaten anyone with the syringes and did not intend to use the syringes to harm anyone.  She asserts that a five-month penalty is excessive for the offense committed, and requests that J.L. be permitted to return to school.

Respondent asserts that petitioner knowingly waived her rights and cannot appeal the suspension because she consented to it.  Respondent asserts that petitioner admitted that J.L. possessed the syringes and what he believed was marijuana, and that the penalty is appropriate.  Respondent also asserts that the petition fails to comply with ��275.8, 275.11 and 275.16 of the Commissioner�s regulations.  Finally, respondent contends that the appeal is moot because J.L. served the suspension and returned to school as of April 19, 2004.

The appeal must be dismissed as moot.  The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts that no longer exists or that subsequent events have laid to rest (Appeal of P.F. and M.F., 42 Ed Dept Rep 390, Decision No. 14,890; Appeal of Lascala, 38 id. 16, Decision No. 13,974).  Petitioner requests only that J.L. be permitted to return to Huntington High School and does not seek expungement of his records.  Since the suspension ended on April 16, 2004, and J.L. has returned to school, no meaningful relief can be granted and the appeal must be dismissed as moot (Appeal of D.W., 43 Ed Dept Rep ___, Decision No. 14,965; Appeal of R.R. and K.R., 41 id. 405, Decision No. 14,726).

Although the appeal is dismissed on procedural grounds, I remind respondent that to effectuate a waiver of rights under Education Law �3214, the waiver must not only be voluntary, knowing and intelligent, but the district must also provide the student and parents with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights (Appeal of a Student with a Disability, 42 Ed Dept Rep 192, Decision No. 14,818; Appeal of J.G., 39 id. 393, Decision No. 14,270; Appeals of McMahon and Mosely, et al., 38 id. 22, Decision No. 13,976).

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