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Decision No. 15,360

Appeal of C.A., SR., on behalf of his son C.A., JR., from action of the Board of Education of the Scotia-Glenville Central School District regarding student discipline.

Decision No. 15,360

(February 9, 2006)

Patricia L.R. Rodriguez, Esq., attorney for petitioner

McCary & Huff, LLP, attorneys for respondent, Kathryn McCary, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his son by the Board of Education of the Scotia-Glenville Central School District ("respondent"). The appeal must be dismissed.

During the 2004-2005 school year, petitioner's son was a senior in respondent's high school. On January 14, 2005, he allegedly threatened to kill a teacher and made an obscene sexual comment. After meeting with petitioner that afternoon, the principal suspended the student for five days, beginning on January 19, 2005 and concluding on January 25, 2005.

On January 25, 2005, a superintendent's hearing was held to determine whether an additional penalty should be imposed. When petitioner arrived for the hearing, the superintendent handed him a letter dated January 24, 2005, which described petitioner's rights under Education Law �3214(c). The superintendent told petitioner that his son had the right to an attorney and offered to postpone the hearing, but petitioner chose to go forward. On the record, petitioner's son pled guilty to a charge of violating respondent's code of conduct by making threatening remarks about a staff member.

By letter dated January 26, 2005, the superintendent determined that petitioner's son would be allowed to return to school to take his remaining final exams for the semester, but that an out-of-district placement would be pursued and that he would not be allowed on school property without the permission of the principal or her designee. During the suspension, the district enrolled petitioner's son in a BOCES program that would allow him to earn a Regents diploma in June 2005.

Petitioner retained an attorney and appealed to respondent, but respondent affirmed the superintendent's decision at its February 14, 2005 meeting. This appeal ensued. Petitioner's request for interim relief was denied on March 8, 2005.

Petitioner asserts that respondent failed to provide reasonable notice and failed to make a record of the superintendent's hearing. He also contends that the penalty is excessive. Respondent asserts that petitioner received sufficient notice of the hearing and that the superintendent offered petitioner the opportunity to obtain representation. Respondent denies that a record was not maintained and contends that suspension for the balance of the school year was a reasonable and appropriate disciplinary response to the conduct.

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 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). Petitioner does not request expungement of his son's records. Since petitioner's son has served the suspension, no further meaningful relief can be granted and the appeal must be dismissed as moot (Appeals of K.G.B., 44 Ed Dept Rep 332, Decision No. 15,189; Appeal of R.S. and R.S., 44 Ed Dept Rep 181, Decision No. 15,141).

Although I am dismissing this matter, I must remind respondent of the notice requirements regarding the disciplinary hearing. Education Law �3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf.

What constitutes "reasonable notice" varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of a Student Suspected of Having a Disability 41 id. 253, Decision No. 14,678).  One day's notice has been held inadequate to provide an opportunity for a fair hearing (Carey v. Savino, 91 Misc.2d 50; Appeal of Eisenhauer, 33 Ed Dept Rep 604, Decision No. 13,163).

Although respondent asserts that petitioner was informed of the date and time of the superintendent's hearing by telephone four days prior to the hearing, the superintendent's written notice is dated January 24, 2005, one day before the hearing, and respondent offers no evidence that it attempted to deliver the notice prior to the hearing. As such, it is impossible to discern whether petitioner had fair notice of the charges, the potential penalty, the right to counsel or the other rights articulated by Education Law �3214(3)(c). Respondent must comply with the notice requirements in future disciplinary proceedings.

In view of this disposition, I need not address petitioner's remaining contentions.