Appeal of S.G. and J.G., on behalf of their daughter L.G., from action of the Board of Education of the City School District of the City of Elmira regarding student discipline.

Decision No. 15,170

(February 10, 2005)

Roe & Hamm, LLP, attorneys for petitioners, Denice A. Hamm, Esq., of counsel

Sayles & Evans, attorneys for respondent, James F. Young, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the City School District of the City of Elmira ("respondent") suspending their daughter, L.G., from school. The appeal must be dismissed.

L.G. attends high school in respondent�s district. On March 16, 2004, L.G. was involved in a fight with two other female students that resulted in injury to a teacher and teaching assistant, both of whom intervened to break up the fight. L.G. was initially suspended for five days, and by letter dated March 17, 2004, petitioners were notified that L.G. was being charged with " conduct that was disorderly, insubordinate, violent and endangering to the safety, health, morals and welfare of others."

A superintendent�s hearing was held on March 22, 2004 to consider whether an additional suspension was warranted, and the hearing officer found L.G. guilty of the charge and recommended, among other things, that she be suspended until February 1, 2005. By decision dated March 29, 2004, respondent�s superintendent adopted both the hearing officer�s finding of guilt and penalty recommendation. By letter dated June 16, 2004, petitioners were notified that respondent had affirmed the superintendent�s determination. This appeal ensued. Petitioners� request for interim relief was denied on August 4, 2004.

Petitioners contend that the hearing evidence was insufficient to support the superintendent�s determination, that the penalty imposed is excessive, and that the hearing officer erred by failing to review the videotape of the incident from the school� s security cameras. For relief, petitioners request that I reverse the suspension and allow L.G. to return to school at the beginning of the 2004-2005 school year or, in the alternative, find the punishment excessive and unduly harsh.

Respondent contends that the hearing evidence was sufficient to sustain the charges and that the penalty imposed was appropriate. Additionally, respondent contends that pursuant to petitioners� request, the hearing officer and superintendent viewed the security videotape, which was forwarded to respondent as part of the record.

To the extent petitioners seek L.G.�s reinstatement, the appeal 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 D.C., 43 Ed Dept Rep 217, Decision No. 14,976; Appeal of D.H., 41 id. 142, Decision No. 14,640). By letter dated December 10, 2004, respondent�s attorney advised my Office of Counsel that the superintendent modified L.G.�s suspension by permittin g her to return to school on January 3, 2005. Accordingly, because L.G. has served the suspension, and petitioners did not request expungement of L.G.�s records, the appeal is moot (Appeal of D.H., supra; Appeal of Camille S., 39 id. 574, Decision No. 14,316).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. A decision to suspend a student from school pursuant to Education Law �3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City of New York v. Mills, 293 AD2d 37). The record reflects that L.G. was involved in an altercation with a number of other girls that required the intervention of several members of respondent�s staff to restore order. When a teacher attempted to subdue L.G., she continued to struggle, and upon breaking free, flailed her arms, striking the teacher in the head and injuring her. Additionally, when a second staff member attempted to restrain L.G., she punched and kicked the staff member, causing her to sustain a number of bruises. In sum, L.G. was involved in a dangerous and violent altercation that resulted in injury to two members of respondent�s staff. I find substantial evidence in the record to support the superintendent�s finding of guilt.

Furthermore, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of D.C., 43 Ed Dept Rep 217, Decision No. 14,976; Appeal of Alexander, 36 id. 160, Decision No. 13,689). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of D.C., supra; Appeal of J.C. and P.C., 41 id. 395, Decision No. 14,723). In light of the seriousness of L.G.�s conduct, I do not conclude that a suspension of approximately seven and a half months was unreasonable (see, Appeal of Mace, 40 Ed Dept Rep 110, Decision No. 14,433; Appeal of Simon, 33 id. 582, Decision No. 13,157). Under the circumstances I find no basis to disturb respondent�s finding of guilt or penalty determination.

Nor do I find any merit to petitioners� contention that the videotape was not included in the record. In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR �275.10; Appeal of M.F. and J.F., 43 Ed Dept Rep 174, Decision No. 14,960; Appeal of Kessler, 43 id. 170, Decision No. 14,958).  The record reflects that at the superintendent�s hearing, petitioner S.G. requested that the superintendent and hearing officer review the security videotape from the high school�s security system and that, in fact, on April 27, 2004, the hearing officer and superintendent, along with petitioners and their attorney, reviewed the videotape, which was forwarded to respondent as part of the record available for respondent�s review.

THE APPEAL IS DISMISSED.

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