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Decision No. 16,347

Appeal of M.J. from action of the Board of Education of the Stamford Central School District regarding student discipline.

Decision No. 16,347

(March 30, 2012)

Schimmerling Law Offices, attorneys for petitioner, Thomas E. Schimmerling, Esq., of counsel

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, Wendy K. DeWind, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Stamford Central School District (“respondent”) to uphold his suspension.  The appeal must be dismissed.

During the 2010-2011 school year, petitioner was a senior at respondent’s Stamford Central School (“school”). On September 27, 2010, school personnel received information that another student, L.H., was seen snorting a white powder up his nose on a school bus.  Respondent indicates that, when questioned about this incident, L.H. initially denied any wrongdoing, but eventually produced a bag with white powder – which he indicated was either PCP or cocaine - that he claimed to have received from petitioner.  Though not entirely clear from the record, it appears that petitioner was immediately suspended by respondent’s personnel as a result of this incident.     

By notice dated October 4, 2010, respondent notified petitioner and his parents that a superintendent’s hearing (“hearing”) would be held on October 8, 2010 on the charge that on September 27, 2010, petitioner was “insubordinate or disorderly or engaged in conduct which endangered the safety, morals, health or welfare of others or some or all of the above. . . .” 

At the hearing, the school’s principal and safety officer testified that L.H. indicated that he had received the white powder that he possessed from petitioner.   In addition, both individuals testified that they were advised by the State police that another student, K.B., had given the police a statement that corroborated L.H.’s statement.  In response, petitioner testified that he did not give drugs to L.H., and presented three witnesses who testified on his behalf.  Two of these witness testified that they were present when petitioner was alleged to have given L.H. the white powder but did not see petitioner give L.H. anything, while the third (petitioner’s girlfriend) testified that she has never known petitioner to use or sell drugs.  Ultimately, however, the hearing officer credited the district’s witnesses, and found petitioner guilty of the charges against him.  In addition, the hearing officer recommended that petitioner be suspended for two calendar years.

By letter dated October 25, 2010, respondent’s superintendent informed petitioner and his parents that he accepted “in all respects” the findings of fact and recommendations of the hearing officer, and that he was suspending petitioner until August 31, 2012.  Thereafter, petitioner appealed this decision to respondent which, on March 10, 2011[1], upheld the superintendent’s decision.  This appeal ensued.

Petitioner contends that he was found guilty of violating school rules “[d]espite the paucity of legally cognizable evidence,” and argues that respondent’s decision in this matter was arbitrary, capricious and “otherwise erroneous.”  As relief, petitioner requests that I “grant an appeal of the decision of [respondent] and immediately reinstate [him].”

Respondent denies petitioner’s contentions and maintains, among other things, that its finding of guilt is supported by the record, and that the length of petitioner’s suspension is justified.  In addition, respondent argues that petitioner’s appeal is moot.

As an initial matter, I must comment on petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  A reply may also not be used to raise new issues or seek new relief (seee.g.Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053; Appeal of Wells, 35 id. 367, Decision No. 13,573; Appeal of Hickland, 32 id. 599, Decision No. 12,926).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer, or that raise new issues or seek new relief.

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).  Here, petitioner does not request expungement of his records in his petition.  Rather, petitioner requests that an appeal be “granted” and that respondent “immediately reinstate” him.  However, in response to a directive pursuant to §276.5 of the Commissioner’s regulations, respondent submitted petitioner’s transcript which indicates that petitioner has since graduated from respondent’s schools.    Accordingly, it is no longer possible to reinstate petitioner, so the appeal is moot.

In addition, I note that petitioner – who does not claim to be emancipated - brings this appeal on his own behalf.  However, information in his transcript indicates that he was under the age of 18 at the time this appeal was commenced.  Because an unemancipated person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law §310, the appeal must be dismissed on this basis as well (seee.g.Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of a Student, 46 id. 404, Decision No. 15,546; Appeal of Cuardrado, 40 id. 470, Decision No. 14,529).

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



[1] Respondent indicates that it was prepared to hear M.J.’s appeal on January 13, 2011, but that it was adjourned at the request of M.J.’s parents so that they could be represented by counsel.  According to respondent, the next time it had available to consider M.J.’s appeal was March 10, 2011.