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Decision No. 16,481

Appeal of G.W., on behalf of her son I.R., from action of the Board of Education of the Malverne Union Free School District, Dean of Students Daniel Nehlsen, and Superintendent James Hunderfund, regarding student discipline.

Decision No. 16,481

(April 29, 2013)

Law Offices of Federick K. Brewington, attorneys for petitioner, Valerie M. Cartright, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondents, Joseph Lilly, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals a determination of the Board of Education of the Malverne Union Free School District (“respondent”) upholding the suspension of her son. The appeal must be dismissed.

During the 2011-2012 school year, petitioner’s son(“student”) attended eighth grade in respondent’s district. According to respondent, on October 18, 2011, an incident occurred wherein the student allegedly made an inappropriate comment of a sexual nature to a female student, subjected her to inappropriate physical contact of a sexual nature, and took her cell phone without her consent.

By letter dated December 9, 2011, petitioner was advised that her son was suspended for five days, from December 9, 2011 through and including December 15, 2011,both for the October 18, 2011 incident and another incident on December 7, 2011, during which the student allegedly made inappropriate sexual advances toward a different female student. The letter advised petitioner that a referral was being made to the superintendent for a determination as to whether further disciplinary action would be taken.

By letter dated December 12, 2011, petitioner was notified that a superintendent’s hearing would be held on December 16, 2011. The letter stated that the student was charged with 12 counts of violating the school’s code of conduct by engaging in conduct that was insubordinate or disorderly or violent or disruptive and/or a danger to the safety, morals, health or welfare of others.  1   The hearing took place over the course of five days between December 16, 2011 and February 6, 2012. On February 6, 2012, the final day of the hearing, the hearing officer determined that the student was guilty of six of the charges. The hearing officer recommended a penalty of suspension for the remainder of the school year.

By letter dated February 14, 2012, the superintendent notified petitioner that he accepted the hearing officer’s findings and recommendation and that the student was suspended through June 30, 2012. By letter dated March 23, 2012, respondent denied petitioner’s appeal and upheld the suspension. This appeal ensued. Petitioner’s request for interim relief was denied on May 4, 2012.

Petitioner argues that the decision to suspend her son from December 16, 2011 until June 30, 2012 was not supported by substantial and/or competent evidence and that the penalty was excessive. She requests that I reverse respondent’s determination regarding the long-term suspension. I note that, while petitioner appears to challenge the short-term suspension on the grounds that it was imposed by the dean of students rather than the principal, she seeks relief only with respect to the long-term suspension.

Respondent maintains that the disciplinary actions and decisions were within its lawful authority and discretion.

Initially, I will address 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). 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.

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). The 2011-2012 school year ended prior to completion of the record in this appeal. The record indicates that the student completed the suspension and was entitled to return to school. Petitioner does not seek expungement of the student’s records in her petition. Therefore, petitioner’s claims regarding the student’s suspension are moot (see Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,371).

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





[1]   On consent of the parties, charges nine through 12 were withdrawn.