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Decision No. 15,841

Appeal of R.S., on behalf of her son C.M., from action of the Board of Education of the Valhalla Union Free School District regarding student discipline.

Decision No. 15,841

(October 15, 2008)

Student Advocacy, attorneys for petitioner, Jean Lucasey, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Marc E. Sharff, Esq., of counsel

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

At the time of this appeal, C.M. was a junior at respondent’s high school.  On May 29, 2007, C.M. urinated in a ketchup dispenser and placed it in the high school cafeteria.  On May 30, 2007, the high school principal suspended C.M. for five days.  By letter dated June 1, 2007, the superintendent notified petitioner that C.M. was being charged with having committed an act which constitutes a misdemeanor and/or felony while on school property, lewd behavior, the destruction of school property, and creating a mental or physical condition which endangers the health, safety, and/or welfare of the students or others.

A disciplinary hearing was held on June 6 and June 18, 2007.  C.M. pleaded no contest to the charges of intentional destruction of school property and creating a mental or physical condition which endangers the health, safety and/or welfare of students or others.  The hearing officer found him guilty of the charges and recommended his suspension from school for the remainder of the 2006-2007 school year and for the first semester of the 2007-2008 school year.  On July 11, 2007, the superintendent issued a decision supporting the hearing officer’s findings and recommendation provided, however, that the superintendent would reconsider C.M.’s term of suspension following Thanksgiving recess based on C.M.’s performance at the Learning Shop, where C.M. was to receive educational services during his suspension.

On July 26, 2007, petitioner appealed to respondent.  By decision dated September 4, 2007, respondent upheld the superintendent’s decision. Respondent did, however, grant a portion of petitioner’s appeal seeking to annul and expunge from C.M.’s record on procedural grounds the original five-day suspension.

This appeal ensued.  A request for interim relief was denied on October 5, 2007.  On November 30, 2007, the superintendent and respondent reviewed C.M.’s suspension and permitted him to return to school on December 3, 2007.

Petitioner contends C.M.’s suspension for the first semester of the 2008-2009 school year was disproportionate to the offense and excessive considering her son’s clean disciplinary record. Petitioner claims that C.M. is remorseful and requests that his suspension for the first semester of the 2007-2008 school year be overturned.  Petitioner also requests that C.M. receive compensatory education equal to the instruction he lost during 2007-2008.

Respondent contends that C.M.’s actions were extremely serious and that the suspension was reasonable.

The appeal must be dismissed as moot to the extent petitioner requests to have her son’s suspension for the 2007-2008 school year overturned.  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).  C.M. returned to school in December 2007 and petitioner did not request expungement of his records.  Accordingly this claim is moot.

Petitioner also complains about the instruction provided to C.M. during his suspension.  Alternative instruction must be substantially equivalent to that received by the student prior to the suspension and equivalency will be determined on a case-by-case basis (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of Deborah F., 42 id. 178, Decision No. 14,813; Appeal of Watts, 23 id. 459, Decision No. 11,282).  Previous Commissioner’s decisions have found that two hours of alternative instruction may fulfill a district’s obligation under Education Law (seee.g.Appeal of a Student with A Disability, 48 Ed Dept Rep ___, Decision No. 15,823).  

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  The record is devoid of any specific allegations regarding the adequacy of the alternative education, such as level of instruction or coursework, provided to C.M. at the Learning Shop.  Therefore, petitioner has failed to provide any proof to establish that C.M. was not provided with adequate alternative education and her claim must be dismissed.