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Decision No. 15,878

Appeal of C.A., on behalf of his son K.A., from action of Joel I. Klein, Chancellor of the New York City Department of Education, regarding student discipline.

Decision No. 15,878

(February 19, 2009)

The Legal Aid Society, attorneys for petitioner, Selene D’Alessio, Esq., of counsel

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of Joel I. Klein, Chancellor of the New York City Department of Education (“respondent”), to uphold the suspension of petitioner’s son, K.A.  The appeal must be dismissed.

During the 2007-2008 school year, K.A. was a 14-year-old eighth grade student at Intermediate School 27 (“IS 27”) in Staten Island, New York.  On February 6, 2008, the school’s assistant principal received a complaint from K.A.’s math teacher that K.A. was creating a disturbance in class by clicking and tapping his pen.  When the assistant principal observed K.A. through a window in the classroom door, he saw K.A. remove a gun from his pants pocket, look at the gun under his desk, turn the gun around and return it to his pocket.  The assistant principal entered the classroom and ordered K.A. to accompany him to the school office.

In the office, the assistant principal asked K.A. whether he had something in his pants pocket that did not belong at school.  K.A. answered “yes,” pulled the gun out of his pants pocket and put it on a desk.  It was a six-inch long, 22 caliber gun.  The gun was in poor condition, partially rusted, worn, tarnished and missing part of its handle.  The gun was not loaded.  The assistant principal and one of the school deans examined the gun.

K.A. was asked to write a statement about the incident.  He wrote that he found the gun in the desk he was sitting at when the assistant principal observed him.  School officials contacted the police, who arrested K.A. later that morning.

By letter dated February 6, 2008, respondent’s chief executive officer of the Office of School and Youth Development (“CEO”) notified petitioner that K.A. had been suspended from school effective February 7, 2008 for possession of a dangerous weapon -- a gun -- behavior that constituted a danger to the health, safety, welfare and morals of both himself and others at school.  A suspension hearing was scheduled for February 13, 2008.

At petitioner’s request, the hearing was rescheduled to March 3, 2008.  At the hearing, the assistant principal and the school dean, who had examined the gun with the assistant principal, were witnesses for the school.  Neither petitioner nor K.A. testified at the hearing nor did they present any witnesses.

By decision dated March 6, 2008, petitioner was informed that the charges against K.A. had been sustained.  The decision further advised petitioner that after full consideration of the seriousness of K.A.’s misconduct and his school records, K.A. was suspended from IS 27 for one calendar year, effective February 8, 2008 through February 6, 2009.  The decision informed petitioner that K.A. would be placed at the Alternative Center at Boys & Girls Republic (“Boys & Girls Republic”) in Manhattan during his suspension.  According to the record, Boys & Girls Republic is a New York City Department of Education (“NYCDOE”) second opportunity school for students who have discipline problems.

The decision advised petitioner that K.A. would be eligible for review for early reinstatement on October 7, 2008.  The decision also advised petitioner that all records of K.A.’s suspension would be expunged upon K.A.’s graduation or departure from the New York City public school system, provided that there were no additional incidents of misbehavior resulting in a principal’s or superintendent’s suspension that is ultimately sustained.  Finally, the decision stated that a formal disposition would follow.

By letter dated April 1, 2008, petitioner received a report of findings and formal disposition from the CEO, which confirmed the disposition of the charges against K.A. and the penalty imposed on him.

On April 16, 2008, petitioner filed an appeal with respondent contending that K.A.’s suspension was excessive and that K.A.’s assigned second opportunity school was an inappropriate placement due to the lengthy commute to and from K.A.’s home.  The appeal requested that K.A.’s suspension be shortened and that K.A. be permitted to serve his suspension at a site in Staten Island.  In the ensuing months, petitioner’s representative contacted respondent’s office on several occasions requesting a decision.  On July 14, 2008, petitioner commenced this appeal to, interalia, compel to respondent to issue a decision.

By decision dated July 28, 2008, respondent’s first deputy counsel denied petitioner’s appeal but determined that the CEO’s order regarding the date K.A. could petition for early reinstatement should be modified from October 7, 2008 to August 29, 2008.

K.A. petitioned for early reinstatement, which was denied.  K.A.’s suspension site for the 2008-2009 school year is the Door School in Manhattan, which is also a second opportunity school.

Petitioner contends that respondent violated Chancellor’s Regulation A-433 IV B.4 by failing to issue a decision within 15 business days of the filing of the complete record on appeal.  Petitioner also argues that the penalty imposed was excessive and that respondent failed to adequately consider K.A.’s age, lack of prior disciplinary record and the totality of the circumstances, including, but not limited to, the fact that the gun was in very poor condition and that K.A. cooperated in its recovery.  Petitioner further alleges that K.A.’s assigned second opportunity school is an inappropriate placement for him due to its harmful social atmosphere and the lengthy commute.  Petitioner requests that K.A.’s suspension be shortened so that he can begin the 2008-2009 school year in a community school.  Petitioner also requests an order directing NYCDOE to issue decisions in accordance with the Chancellor’s Regulations.

Respondent contends that since NYCDOE has issued an appeal decision in this matter, petitioner’s request for an order directing respondent to issue such a decision is now moot.  Respondent asserts that the penalty was appropriate based on K.A.’s conduct.  Respondent further maintains that there are no second opportunity schools in Staten Island and that, pursuant to Chancellor’s Regulation A-443 III B.3(v)(2)(a), a student, like K.A., who receives an extended suspension must be sent to a second opportunity school.  Thus, respondent argues that K.A.’s assignments were appropriate.

The appeal must be dismissed as 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Petitioner does not request expungement of K.A.’s records.  Since K.A. has served the suspension, no further meaningful relief can be granted and the appeal must be dismissed as moot (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of K.G.B., 44 id. 332, Decision No. 15,189; Appeal of R.S. and R.S., 44 id. 181, Decision No. 15,141). 

Although the appeal must be dismissed, I note that respondent’s decision should have been issued within 15 working days of the filing of the complete record on appeal (Chancellor’s Regulation A-443 IV B.4).  Respondent’s decision was rendered approximately three and a half months from the date of the appeal and petitioner had to repeatedly contact respondent’s office and commence this appeal before the decision was issued.  Respondent is advised to adhere to his regulatory timeframes in the future (Appeal of V.C., 45 Ed Dept Rep 571, Decision No. 15,419).

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