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Decision No. 15,171

Appeal of V.G., on behalf of her son D.G., from action of the Board of Education of the Odessa-Montour Central School District and Superintendent Carol Boyce regarding student discipline.

Decision No. 15,171

(February 10, 2005)

Sayles & Evans, attorneys for respondents, Conrad R. Wolan, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, D.G., by the Board of Education of the Odessa-Montour Central School District ("respondent board"). The appeal must be dismissed.

On March 18, 2004, D.G.�s idle play with the protective cage covering a building fire alarm at Crossroads, an alternative high school program of the Schuyler-Chemung-Tioga BOCES, caused the alarm to activate. The building was evacuated, and its occupants were required to remain outside for approximately 30 minutes. Based on information provided by another student, the principal called D.G. to her office, and he admitted to playing with the alarm�s protective cage. After discussing the incident with petitioner, the principal suspended D.G. for five days. By letter dated March 19, 2004, the superintendent scheduled a hearing for March 26, 2004. The hearing was adjourned and held on March 29, 2004 to enable D.G. to attend.

At the hearing, D.G. testified that he was opening and closing the metal cage covering the fire alarm when it activated, but he asserted that he did not intend to set off the alarm. In his March 30, 2004 decision and recommendation, the hearing officer stated that a 19-year-old such as D.G. was capable of recognizing that a fire alarm is not a toy and found that D.G. endangered the safety and welfare of other students. By letter dated April 2, 2004, the superintendent suspended D.G. through April 7, 2004, for a total of 13 days. Petitioner appealed to respondent board, which issued a determination on April 22, 2004 upholding the superintendent�s decision. This appeal ensued. Petitioner�s request for interim relief was denied on May 20, 2004.

Petitioner asserts that the decision to suspend her son was arbitrary and intended to form the basis for further disciplinary action. She requests an investigation into the district�s suspension practices and seeks to prevent the superintendent from suspending her son in the future.

Respondents assert that the appeal process does not provide for investigations and that the superintendent must ensure the safety of all students. Respondents further contend that petitioner�s request for a stay of the superintendent�s suspension authority is premature because the student is not threatened by any action at this time.

The appeal must be dismissed as moot.  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 D.W., 43 Ed Dept Rep 188, Decision No. 14,965; Appeal of L.B., 43 id. 159, Decision No. 14,952; Appeal of N.S., 42 id. 190, Decision No. 14,817).  Petitioner does not request expungement of her son�s records.  Since her son has served the suspension, no further meaningful relief can be granted, and the appeal of respondent board�s determination must be dismissed as moot (Appeal of R.R. and K.R., 41 Ed Dept Rep 405, Decision No. 14,726; Appeal of D.H., 41 id. 142, Decision No. 14,640; Appeal of N.B., 40 id. 515, Decision No. 14,542).

While I am constrained to dismiss this appeal, I must comment on the district�s failure to comply with the student�s due process rights related to the initial five-day suspension. Education Law �3214(3)(b)(1) provides that in the case of a suspension by a principal, not to exceed five days, the student be provided with notice of the charged misconduct and the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal at which the pupil and/or person in parental relation shall be authorized to present the pupil�s version of the event and to ask questions of the complaining witnesses."  That section further provides:

The aforesaid notice and opportunity for an informal conference shall take place prior to suspension of the pupil unless the pupil�s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the pupil�s notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable.

The parental notice shall be in writing and "shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension"(8 NYCRR �100.2[1][4]). The written notice must "inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b)"(id.).

Although the principal had a telephone conversation with petitioner regarding the incident and her intention to suspend D.G., her written notice to petitioner did not comply with �100.2(l)(4) of the Commissioner�s regulations. Oral communication with parents regarding a suspension is not a substitute for the required written notification (Appeal of R.F., supra; Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 390, Decision No. 14,722). Further, because respondents do not allege that the student�s presence in school posed a continuing danger or threat, the principal was obligated to conduct an informal conference before suspending the student (Education Law �3214[3][b][1]). I remind respondents of the obligation to comply with Education Law �3214 and �100.2(l)(4) of the Commissioner�s regulations.

With respect to petitioner's request for an investigation, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Coleman, et al., 42 Ed Dept Rep 256, Decision No. 14,845; Application of Wilson, 41 id. 196, Decision No. 14,663).

Finally, petitioner�s request that I stay the superintendent�s authority to suspend her son must be dismissed as premature.  While the superintendent�s letter includes a general reminder that a student may be subject to further disciplinary action if he or she violates the school�s code of conduct, petitioner does not establish that her son is currently threatened with any further suspension.  It is well established that the Commissioner will not render advisory opinions or decide issues that have not yet become justiciable (Appeal of L.M., 43 Ed Dept Rep 279, Decision No. 14,994; Appeal of Sheppard, 41 id. 150, Decision No. 14,643).