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Decision No. 15,546

Appeal of A STUDENT from action of the North Colonie Central School District regarding student discipline.

Decision No. 15,546

(March 16, 2007)

Ruffo Tabora Mainello & McKay, PC, attorneys for petitioner, Raul A. Tabora, Jr., Esq., of counsel

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner, a 17-year-old student, appeals a three-day suspension by the North Colonie Central School District (“respondent”).  The appeal must be dismissed.

A school bus driver for respondent’s district reported that on January 6, 2006, she saw the petitioner and an unidentified girl engaged in a sexual act in the woods between the school and the bus garage.  On January 31, 2006, petitioner and his parents met with the bus driver and the hall principal, and on February 7, 2006, an informal conference was held with the building principal, the bus driver and a language interpreter.  By notice dated February 7, 2006, the principal suspended petitioner for three days for conduct endangering the health, safety, morals or welfare of others and imposed an athletic suspension and probation.  This appeal ensued.  Petitioner requests that his record be expunged and that the athletic ban and probation be reversed.

     According to the date of birth listed on the suspension notice, petitioner is under the age of 18, and he does not claim to be emancipated. Because an unemancipated person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law §310, the appeal must be dismissed (Appeal of Farber, 33 Ed Dept Rep 424, Decision No. 13,100).

In light of this disposition, I need not address the parties’ remaining contentions.