Appeal of D.K., on behalf of her daughter K.K., from action of the Board of Education of the City School District of the City of Newburgh regarding an athletic suspension.

Decision No. 15,857

(December 22, 2008)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Newburgh (“respondent”) to impose an athletic suspension on her daughter, K.K.  The appeal must be dismissed.

During the 2007-2008 school year, K.K. was a seventh grade student in respondent’s district and a member of the crew team.  On May 10, 2008, the crew team competed in Saratoga Springs, New York.  K.K. and other students from the crew team admittedly stole merchandise from vendors at the event.

The next day, while still at the competition, the coach of the crew team required the involved students to apologize and return the stolen merchandise to the vendors.  Additionally, the students had to perform a community service project rather than participate in practice, and were suspended from participating in the next two crew team meets.  Finally, when the crew team returned home, the coach individually met with the parents of the students involved.

By letter dated May 15, 2008, respondent’s director of athletics and physical education (“athletic director”) informed petitioner that K.K. was suspended from the team for either one or two meets (depending on her level of culpability).  The matter was then discussed in executive session at respondent’s May 28, 2008 meeting.  By memo dated May 29, 2008, the athletic director notified crew team members and their parents that respondent “has terminated the remainder of the NFA [Newburgh Free Academy] Crew Team season effective immediately.”  The following evening, petitioner and several other parents of crew team members met with respondent’s president, the superintendent and two assistant superintendents.  By memo dated May 30, 2008 entitled “REVISED Decision Regarding End of Crew Season,” the athletic director informed the crew team that the season would continue and conclude as originally scheduled, but the athletes who stole during the Saratoga Springs meet, including K.K., could not participate in the remaining meets.  This appeal ensued.

Petitioner contends that respondent was not authorized to “repunish” K.K. after the initial penalty was imposed by the athletic director.  Petitioner requests that I investigate respondent’s actions and remove any reference to the incident from K.K.’s school record.

Respondent contends that petitioner has failed to meet her burden of proof.  Respondent also states that the matter is moot and must be dismissed because it seeks declaratory relief.

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).  Since K.K. has already served the athletic suspension and the 2007-2008 crew season has ended, the appeal is moot, except to the extent that petitioner seeks expungement of the incident from K.K.’s record.

Petitioner contends that respondent acted improperly when it imposed additional penalties upon K.K. and the other crew team members without offering them an appeal.  However, in-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794; Appeal of Denis, 40 id. 306, Decision No. 14,487; Appeal of Michael J.A., 39 id. 501, Decision No. 14,293).

In this case, respondent asserts that, in light of the severity of the conduct, it was appropriate for respondent to review the matter and review the punishment imposed by the crew team coach.  A board of education has broad authority to establish reasonable standards of conduct for participation in extracurricular activities (Appeal of G.M.D., 43 Ed Dept Rep 289, Decision No. 14,998; Appeal of D.T., 43 id. 58, Decision No. 14,916; Appeal of Wright, 38 id. 756, Decision No. 14,134).  The district’s Code of Conduct states that respondent’s role is to “ensure that the District Code of Conduct is implemented and enforced in a consistent, reasonable, fair, and equitable manner.”  Petitioner states that respondent reviewed the initial penalty, imposed by the coach, at the request of parents who “thought the punishment was too lenient.”  Therefore, on the record before me, I find that petitioner has failed to establish any abuse of the board’s discretion in this matter.  

Further, petitioner was given multiple opportunities to discuss the proposed punishment with school officials.  Indeed, the meeting held on the evening of May 29, 2008 with respondent’s president, the superintendent and two assistant superintendents resulted in a modification to the penalty imposed the day before.  As of May 30, 2008, the crew season was allowed to continue and only the students involved in the theft were banned from participation for the remainder of the season.  I therefore find that petitioner received the appropriate level of due process.

Finally, petitioner requests that I investigate respondent’s actions.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).

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

THE APPEAL IS DISMISSED.

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