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Decision No. 15,984

Appeal of V.F., SR., on behalf of his son V.F., JR., from action of the Board of Education of the Deer Park Union Free School District regarding student discipline.

Decision No. 15,984

(September 3, 2009)

Young & Young, LLP, attorneys for petitioner, Richard W. Young, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the suspension of his son, V.F., by the Board of Education of the Deer Park Union Free School District (“respondent”).  The appeal must be dismissed.

In the fall of 2005, V.F. attended respondent’s high school and was a member of the football team.  On August 24, 2005, during football practice, a member of the team reported that his playing gloves were missing.  The football coach asked each member of the team to walk through the gym alone so that whoever took the gloves could place them on the couch in the gym anonymously and without sanction.

Thereafter, the assistant coach checked the gym for the gloves and saw an open, white plastic bag on the couch containing a pair of gloves (which were not the missing gloves) and an open cigarette pack containing a white straw-like object and a clear plastic bag containing a white powder.  After consulting with the administration, the coach returned to the practice field with the bag and asked whose bag it was.  V.F. raised his hand and said that the bag was his.

V.F. was asked to accompany the coach to the assistant principal’s office.  As the assistant principal removed the contents from the bag, V.F. immediately stated that the cigarette pack was not his.  He told the assistant principal that he suspected someone had set him up.  The Suffolk County Police were called and the cigarette pack with the bag of white powder was confiscated.  The police performed a preliminary test on the powder, which indicated that the substance might be cocaine, and V.F. was arrested.

On September 8, 2005, a superintendent’s hearing was held.  V.F. was charged with engaging in conduct that endangered the safety, morals, health and welfare of others, specifically, that he was found in possession of a substance believed to be cocaine and drug paraphernalia.  At the hearing, V.F. testified in his own behalf.  By letter dated September 12, 2005, the superintendent notified petitioner that he found V.F. guilty of the charges.  V.F. was suspended from respondent’s high school until January 31, 2006.  He was offered alternative instruction and counseling.

By letter dated September 19, 2005, petitioner appealed the superintendent’s determination to respondent, which upheld the determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 12, 2006.

Petitioner requested that the decision be reversed and that his son be allowed to return to school.  He contends that respondent failed to establish that his son possessed the cigarette pack and its contents and that the substance was an illegal drug.

Respondent argues that V.F. admitted the bag was his, that the substance found therein appeared to be cocaine and that the straw-like object was drug paraphernalia.  It also contends that the matter is moot because V.F. served the suspension and was reinstated at respondent’s high school.

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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  Petitioner requested that V.F. be permitted to return to school and did not seek expungement of his records.  Since the suspension ended on January 31, 2006, and V.F. returned to school, no meaningful relief can be granted and the appeal must be dismissed as moot (Appeal of V.L., 44 Ed Dept Rep 160, Decision No. 15,132).

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).

With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).  In this case, it is undisputed that the bag found in the locker room belonged to V.F. and contained other items belonging to him.  In addition, the testimony presented at the hearing by the Assistant Varsity Football Coach, the Assistant High School Principal and the Suffolk County police officer who had been called to the scene, allowed the hearing officer to draw a reasonable inference that V.F. was responsible for the conduct charged (Appeal of David and Cynthia L., 40 Ed Dept Rep 297, Decision No. 14,484; Appeal of a Student with a Disability, 39 id. 427, Decision No. 14,278).  Although V.F. denied that the items in question belonged to him, the hearing officer did not credit his testimony.  Since the determination had an adequate basis in the record before me, I decline to substitute my judgment for the hearing officer as to the student’s credibility.

Furthermore, it was reasonable for respondent to conclude that the substance in the cigarette pack was cocaine.  V.F.’s uncle, a member of the New York City Police Department, testifying on V.F.’s behalf, admitted that the Scott Reagent Test -- the test used to identify the substance in question as cocaine -- is relied on by law enforcement agencies.

Accordingly, on the record before me, I cannot conclude that the district’s suspension of V.F. was arbitrary or capricious.