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Decision No. 16,147

Appeal of A.B., on behalf of her son K.B., from action of the Board of Education of the Salmon River Central School District regarding student discipline.

Decision No. 16,147

(September 2, 2010)

Law Office of John A. Piasecki, attorneys for petitioner, John A. Piasecki, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Eric J. Wilson, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Salmon River Central School District (“respondent”) affirming the suspension of K.B.  The appeal must be dismissed.

During the 2009-2010 school year, K.B. attended 12th grade in respondent’s district and was a member of the varsity hockey team (“team”).  On the morning of November 27, 2009, K.B. was present at the high school to meet the team for a trip to New York City.  Prior to the team’s departure, K.B. was in the school’s basement weight room with at least one other student when the school custodian reported to the hockey coach (“coach”) that he smelled marijuana coming through the lobby from the basement.  After viewing a security camera of the area, the coach questioned four students, including K.B., about the incident.

By letter dated November 30, 2009, the principal informed petitioner that K.B. was being suspended for five days – Monday, November 30 through Friday, December 4, 2009 – for “using marijuana on school property.”  In a November 30, 2009 letter, petitioner was informed that a superintendent’s hearing would be held on December 2, 2009.

The hearing was conducted by the superintendent.  During the hearing, K.B. admitted that he had a glass marijuana pipe with him at school that day because he “forgot it in [his] pocket.”[1]  K.B. testified that when he discovered the pipe in his pocket, he took it to the weight room and he and another student began to heat it up to see “if there was anything in there.”  According to K.B., while there was no marijuana in the pipe, he and the other student heated it in an attempt to smoke the “resin.”  When the students heard a noise, they dropped and broke the pipe.  Although K.B. testified that he and the other student threw the broken pipe outside a nearby door, the record indicates that respondent found no evidence of a broken pipe or other materials.

By letter dated December 4, 2009, the superintendent informed petitioner of her determination that K.B.’s conduct violated the school drug policy and that he would be suspended for the remainder of the 2009-2010 school year.  The superintendent also noted that K.B. would receive tutoring and that respondent was “committed to providing the support [K.B.] needs to graduate.”

On or about December 16, 2009, petitioner appealed this determination to respondent.  By letter dated February 9, 2010, the board clerk informed petitioner that respondent had considered her appeal at its February 8, 2010 meeting and affirmed the suspension.  The letter also informed petitioner that K.B. would be provided with tutoring for the remainder of his suspension and that the principal would monitor K.B.’s progress and consider “possible modifications to his suspension” after March 1, 2010.  This appeal ensued.

Petitioner argues that respondent’s finding of guilt was not supported by substantial evidence and that a suspension for the remainder of the 2009-2010 school year was excessive.  Petitioner also maintains that K.B.’s suspension must be annulled because the November 30, 2009 notice failed to specify that he was being charged with the “use of a device” on school property.

Respondent contends that its decision to suspend K.B. was based on competent and substantial evidence and that the penalty was not excessive.

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.B.’s records.  Since K.B. has served the suspension and the 2009-2010 school year has ended, no further meaningful relief can be granted and the appeal must be dismissed as moot (Appeal of C.A., 48 Ed Dept Rep 340, Decision No. 15,878; Appeal of C.A., Sr., 45 id. 388, Decision No. 15,360).

However, even if the appeal was not dismissed on procedural grounds, it would be dismissed on the merits.  Petitioner argues that the November 30, 2009 notice, which charged K.B. with “using marijuana,” failed to “give adequate notice of the allegations that were being examined at the hearing, i.e. use of a device.”  I disagree.  The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).  K.B.’s suspension occurred as a result of the November 27, 2009 incident at school during which he was in possession of a marijuana pipe containing marijuana residue.  Accordingly, I find that respondent’s notice adequately apprised petitioner of the charge against K.B. and the conduct underlying that charge.

The record indicates that K.B. admitted to bringing a marijuana pipe onto school property and heating it in an attempt to smoke the resin.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).  As a result, I cannot conclude that respondent’s determination that K.B. was guilty of using marijuana on school property was arbitrary or capricious. Given the gravity of the offense, I do not find the penalty to be excessive and petitioner’s remaining contentions have no merit.



[1] Both parties have prepared and submitted separate transcripts of the hearing.  Although neither appears to be an official transcript, I have reviewed both documents and found no material discrepancies or inconsistencies.  The excerpts from K.B.’s testimony included in this decision appear in both versions of the transcript contained in the record before me.