Appeal of W.K., on behalf of his son M.K., from action of the Board of Education of the Uniondale Union Free School District regarding student discipline.

Decision No. 15,519

(January 23, 2007)

Ingerman Smith, L.L.P., attorneys for petitioner, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his son, M.K., by the Board of Education of the Uniondale Union Free School District (“respondent”).  The appeal must be dismissed.

On April 21, 2005, when M.K. was a seventh grade student at the Lawrence Road Middle School, he was involved in an altercation outside the school building.  On April 22, 2005, petitioner was notified by telephone of an impending suspension and attended an informal conference with the principal.  On the same day, a letter advising the student’s mother that her son would be suspended for five days was delivered to her residence.

Also by letter dated April 22, 2005, the superintendent advised the student’s mother that a hearing was scheduled for May 5, 2005.  The letter indicated that M.K. was being charged with throwing a garbage can on top of a student who was being kicked and punched by several students.

A suspension hearing was held on May 5, 2005.  At the conclusion of the hearing, the superintendent attempted to review the tape recording and discovered the tape was blank.  Accordingly, he scheduled a rehearing for May 9, 2005.  On the morning of May 9, petitioner delivered letters from the student’s mother to the principal and to the superintendent advising them that they would not attend the hearing.

The superintendent again presided at the May 9, 2005 hearing.  By letter of that date, the superintendent advised the student’s mother that her son was found guilty of the charge, that he was suspended until January 2, 2006, and that he would be assigned to an alternative program during the period of suspension.

In a letter dated May 11, 2005, petitioner appealed to respondent objecting to the May 9, 2005 hearing, in part alleging that he had insufficient time to retain an attorney and prepare.  The superintendent responded with a letter dated May 12, 2005, in which he offered to rehear the matter.  In response to letters from petitioner dated June 7 and 10, 2005, the superintendent scheduled a rehearing on June 15, 2005.  By letter dated June 14, 2005, however, petitioner asked respondent to proceed with his appeal of the prior hearings.  In response, the superintendent cancelled the hearing scheduled for the following day.  By letter dated June 23, 2005, respondent upheld the superintendent’s May 9, 2005 decision.  This appeal ensued.

Petitioner asserts that the notice of the five-day suspension was defective and contends that the May 5, 2005 hearing and May 9, 2005 rehearing violated his son’s right to due process.  Petitioner also contends that respondent’s determination was against the weight of the evidence and that the penalty was excessive.  He asks that the district expunge the M.K.’s record of any reference to the disciplinary incident.

Respondent admits that the principal’s suspension letter was not delivered to M.K.’s mother until after the principal’s conference was held.  It avers that the district expunged M.K.’s record of the principal’s suspension and that it has corrected its practice.  Respondent argues that all issues related to the May 5, 2005 hearing are moot since they were cured by the May 9, 2005 rehearing.  Respondent further contends that the finding of guilt was based on substantial evidence and that the penalty was not excessive considering the seriousness of the incident.

Petitioner’s challenges to the five-day suspension and to the May 5, 2005 hearing are 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).  Any reference to the five-day suspension has been expunged from M.K.’s records.  Also, in response to a tape recorder malfunction at the May 5, 2005 hearing, the superintendent held a rehearing on May 9, 2005.  Therefore, petitioner’s complaint concerning the original hearing is moot (seeAppeal of C.Q. and J.Q., 41 Ed Dept Rep 294, Decision No. 14,691).

With respect to the May 9, 2005 rehearing, petitioner argues that his son’s due process rights were violated.  First, petitioner argues that he had insufficient notice.  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).  Here, in light of the fact that petitioner had already appeared at the May 5 hearing, had an additional four days notice before the May 9 hearing, and did not request an adjournment, I find the notice to be reasonable.  In addition, the record reflects that the superintendent offered a second rehearing on June 15, 2005, but that petitioner declined.

Petitioner also argues that the May 9 rehearing was improper because an additional witness testified and because certain evidence introduced at the May 5 hearing was excluded.  Courts have recognized in student discipline cases that the removal from a student’s record of a faulty hearing (along with any discipline rendered) and the curing of earlier procedural defects through subsequent hearings are permissible (seeStrickland, et al. v. Inlow, et al., 519 F2d 744; Hillman v. Elliott, et al., 436 F Supp 812; Coffman v. Kuehler, et al., 409 id. 546; Williams, et al. v. Vermilion Parish School Bd., et al., 345 id. 57).  Thus, the evidence on which the suspension should have been based, and upon which this appeal shall be decided, is the record of the May 9 hearing, without regard to the May 5 hearing.

Petitioner also contends that the determination was against the weight of the evidence.  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).  I find that the record of the May 9, 2005 hearing contains substantial evidence supporting respondent’s determination.  A security officer testified that M.K. threw a garbage can in the direction of a student who was on the ground.  This was corroborated by the testimony of a teacher’s aid who saw the garbage can fall and saw M.K. strike the student on the ground.

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).  Although petitioner refers to his son’s conduct as “play fighting,” the hearing record establishes that M.K. threw a garbage can in the direction of a student who was on the ground and then struck him as part of a gang initiation.  School officials must take any type of hazing seriously and act to eliminate the practice (seeAppeal of J.W., 44 Ed Dept Rep 443, Decision No. 15,225).  Under these circumstances, I find that the penalty is not irrational or unreasonable and is within respondent’s discretion.

THE APPEAL IS DISMISSED.

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