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Decision No. 15,834

Appeal of C.R., on behalf of her daughter J.R., from action of the Board of Education of the Monticello Central School District regarding student discipline.

Decision No. 15,834

(October 1, 2008)

Shawn Law Offices, attorneys for petitioner, Henri Shawn, Esq., of counsel 

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Judith Crelin Mayle, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Monticello Central School District (“respondent”) to suspend her daughter, J.R., from school.  The appeal must be dismissed.

J.R. was a student at respondent’s high school at the time of the events leading to this appeal.  On December 22, 2006, J.R. was involved in a physical altercation with another student in the school’s cafeteria.  During the altercation, a staff member was physically injured.  On January 4, 2007, J.R. was charged with insubordination and violent conduct.

As a result of the incident, respondent’s principal suspended J.R. from January 3 through January 9, 2007.  Petitioner was notified by letter that a hearing had been scheduled for January 31, 2007 to consider the suspension of J.R. for more than five days for conduct which endangered the safety, morals or welfare of others.  This notice informed petitioner of J.R.’s rights, including the right to cross-examine respondent’s witnesses, to present witnesses or other evidence on her daughter’s behalf, and to be represented by counsel at the hearing.

Following the hearing, by letter dated February 13, 2007, J.R. was found guilty of the charges against her.  On March 8, 2007, a second hearing was conducted to determine the penalty against J.R.  Counsel for respondent and petitioner were present at the penalty phase.  At that time, the hearing officer accepted the district’s recommendation and recommended an out-of-school suspension for the remainder of the school year.  Respondent sustained the determination and penalty on or about June 19, 2007.  This appeal ensued. 

Petitioner contends that J.R. was defending herself against a physical assault and that she fully complied with the directives of respondent’s employees.  Petitioner requests that I reverse respondent’s decision, “annul and expunge any adverse School District records” against J.R., strike portions of the testimony relative to email exchanges, strike the testimony of Principal Arlene Siegel-Lerner, and dismiss the charges.

Respondent asserts that petitioner’s claims should be dismissed as moot, that the penalty imposed upon J.R. was appropriate to the severity of the misconduct and that the hearing officer’s decision was based on competent and substantial evidence introduced at the hearing.

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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Thus, the appeal must be dismissed as moot to the extent petitioner seeks to vacate the suspension because it has already been served.  The appeal is not moot, however, insofar as petitioner seeks expungement of the suspension from J.R.’s records. 

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).  A hearing officer may draw a reasonable inference if the record supports the inference (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of a Student with a Disability, 44 Ed Dept Rep 136, Decision No. 15,124; Appeal of M.P., 44 id. 132, Decision No. 15,123).  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).

The record reflects that J.R. engaged in a physical altercation with another student, which resulted in the injury of a school employee.  The evidence submitted at the superintendent’s hearing included a video tape depicting J.R. directly involved in the physical altercation and continuing such involvement after the intervention of school staff.  The school principal and assistant principal both testified at the hearing that the school had adopted a zero tolerance policy with regard to physical violence.  Accordingly, the finding of guilt and the penalty imposed are supported by the record, and I will not substitute my judgment for respondent’s.

I have reviewed petitioner's remaining contentions and find them without merit.  Accordingly, I decline to address the parties’ remaining contentions.