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Decision No. 16,263

Appeal of F.R., on behalf of her daughters, from action of the Board of Education of the Freeport Union Free School District regarding student discipline.

Decision No. 16,263


Ingerman Smith, LLP, attorneys for respondent, Susan E. Fine, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District (“respondent”) to suspend her daughters from school.  The appeal must be dismissed.

During the 2009-2010 school year, petitioner’s daughters were students at respondent’s high school.  On June 16, 2010, petitioner’s daughters and two other students were involved in a physical altercation across the street from the high school.  By letter dated June 16, 2010, petitioner was notified that her daughters were suspended for five school days from September 7 through September 16, 2010.[1]  That same day, petitioner called the district’s executive director for operations (“executive director”) to express her concerns regarding her daughters’ suspension for conduct that occurred off school grounds and the imposition of the suspensions at the beginning of the 2010-2011 school year.  Following an investigation, by letter dated June 18, 2010, the executive director, as the superintendent’s designee, upheld the principal’s determination to suspend petitioner’s daughters.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 15, 2010.

Petitioner challenges the suspensions as unfair and unjust.  Although not clearly set forth in the petition, it appears from the exhibits submitted by petitioner that the gravamen of her complaint is that her daughters should not have been disciplined for conduct that occurred off school grounds.  Petitioner requests that I overturn the suspensions.  Petitioner also appears to challenge her daughters’ prior suspensions.   

Respondent contends that the petition fails to state a claim and that petitioner failed to establish any violation of her daughters’ due process rights under Education Law §3214.  Respondent also maintains that the appeal must be dismissed for failure to exhaust administrative remedies.

First, I must address several procedural issues.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Petitioner’s memorandum improperly adds claims and requests for relief not included in the petition.  Therefore, while I have reviewed petitioner’s memorandum, I have not considered those portions that add new claims and requests for relief.

I decline to dismiss the appeal for failure to exhaust administrative remedies.  Students who are suspended from school for five days or less may appeal their suspension directly to the Commissioner, unless a school district has adopted a policy that would require students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578).  The Freeport Code of Conduct provides: “[i]f the Superintendent upholds the suspension in whole or in part, the parent may further appeal to the Board of Education.”  Because the Freeport Code of Conduct permits, but does not require, a parent to file an appeal to the board before appealing to the Commissioner, I will not dismiss the appeal for failure to exhaust administrative remedies.

To the extent petitioner attempts to challenge her daughters’ prior suspensions, her claims must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Other than the June 16, 2010 suspensions challenged here, the suspensions referenced by petitioner occurred more than 30 days prior to the commencement of this appeal.

Finally, 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner’s daughters were suspended for five days, from September 7 to September 16, which dates have passed.  In her petition, petitioner does not seek expungement of her daughters’ records.  Consequently, as petitioner’s daughters have served their suspension and returned to school, the appeal is moot.

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



[1] School was closed on September 9 and 10.