Appeal of D.M. and C.M., on behalf of their son J.M., from action of the Board of Education of the North Colonie Central School District regarding student discipline.

Decision No. 15,339

(January 18, 2006)

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal the suspension of their son, J.M., from the North Colonie Central School District ("respondent"). The appeal must be dismissed.

On May 26, 2004, J.M. was suspended from school for two days for allegedly making threatening remarks to a student who he believed had been with his former girlfriend and for making derogatory remarks about that female student. The suspension notice included the provision that upon J.M.'s return to school, he should have no contact with the female student. According to the hall principal, when J.M. returned to school on June 1, 2004, he expressly directed J.M. to have no contact with the female student.

On June 9, 2004, J.M. was observed speaking with the female student and was suspended for three days for insubordination for violating the "no contact" directive. As a result of the suspensions, J.M. was also suspended from athletics in accordance with the district's Interscholastic Athletics Guide. This appeal ensued.

Petitioners seek review of the principal's actions and request that the two suspensions be expunged from J.M.'s records. They contend that the penalties are excessive and not in accord with the school's code of conduct.

Respondent asserts that the discipline imposed was justified and appropriate. It further asserts that participation in interscholastic sports requires adherence to certain training and conduct rules and that both J.M. and his father signed a certificate indicating that they had read and understood the athletic training rules and regulations.

The Commissioner 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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). The appeal must be dismissed as moot to the extent petitioners seek to vacate the suspensions because J.M. has already served the suspensions and his athletic probation ended in June 2005. The appeal is not moot, however, insofar as petitioners seek expungement of the suspensions from J.M.' s record.

In an appeal to the Commissioner, the 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 Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). The 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 School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107). Petitioners allege that the first suspension was based on hearsay from the female student and her friends. However, petitioners also admit that J.M. engaged in the conduct underlying the suspensions. Therefore, they have failed to meet their burden of proof.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved. 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 a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976). Petitioners argue that the suspensions are not in accordance with respondent's code of conduct. However, neither party submitted the district's code of conduct. Petitioners also argue that the behavior that led to the suspensions was the result of a breakup between two young people that has since been resolved and that imposing a suspension for merely talking was unjustified.

I do not find the short-term suspensions to be excessive, especially where J.M. was clearly aware of respondent's harassment policy, as indicated by his signature on a copy of the policy, and where he was instructed in writing in the first suspension notice to have "no contact" with this particular female student. Mrs. M. further asserts that the second suspension was in retaliation for her behavior towards the hall principal. However, the record indicates that Mrs. M.'s behavior must have followed that suspension because it appears that the receipt of the suspension notice provoked her reaction.

Finally, with respect to the athletic suspension, 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, the policy will be upheld (Appeal of G.M.D., 43 Ed Dept Rep 289, Decision No. 14,998; Appeal of D.T., 43 id. 58, Decision No. 14,916; Appeal of Wright , 38 id. 756, Decision No. 14,134). Petitioners do not allege or demonstrate that respondent abused its discretion in establishing or implementing its standards of conduct for athletic participation. Rather, petitioners argue that expunging the school suspensions would result in lifting the athletic penalties. In light of the disposition of this case, I need not address J.M.'s suspension from athletics.

THE APPEAL IS DISMISSED.

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