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Decision No. 16,544

Appeal of M.C., on behalf of her son J.R., from action of the New York City Department of Education regarding student discipline.


Decision No. 16,544


(August 30, 2013)


Neighborhood Defender Service of Harlem, attorneys for petitioner, Jacqueline Harrington, Esq., of counsel


Michael A. Cardozo, Corporation Counsel, attorney for respondent, Gloria M. Yi, Esq., of counsel


KING, JR., Commissioner.--Petitioner appeals the decision of Dennis M. Walcott, Chancellor1 of the New York City Department of Education (“respondent”), to suspend her son. The appeal must be dismissed.


In December 2010, petitioner’s son, J.R., was a 17year-old 11th-grade student attending respondent’s Art and Design High School (“school”). On the morning of December13, 2010, J.R. was brought to the dean’s office to speak with the assistant principal in the course of respondent’s investigation of an altercation that occurred on Thursday, December 9, 2010 between J.R. and another student. The altercation apparently started in the lunchroom during the school day and continued after school that afternoon, off of school grounds. During the lunchroom incident, J.R. was alleged to have wrapped a spiked necklace around his fist and brandished it at the other student.


The altercation was reported to school officials the next day, Friday, December 10, 2010, but J.R. was absent from school. Upon returning to school on the morning of December 13, 2010, J.R. was immediately brought to the dean’s office by a school safety officer for questioning and out of concern that J.R. might retaliate against the other student.


According to respondent, while J.R. was being questioned by the assistant principal in the presence of a school safety agent, he admitted having a paintball gun in his backpack and consented to a search of his backpack by the assistant principal. Before allowing J.R. to return to class, the assistant principal asked if he had anything he was not supposed to have. J.R. responded that he had a


1At the time of the determination, the Chancellor was Cathleen P.Black.


paintball gun in the main compartment of his bag. The assistant principal then asked J.R. if he could open the bag, to which J.R. replied, “Yes, go ahead.” The assistant principal opened the bag and J.R. stated that the paintball gun was under his sweat suit. The assistant principal found the paintball gun, which was empty, inoperable, and missing certain parts.


By letter dated December 14, 2010, the Chief Executive Officer in respondent’s Office of School and Youth Development (“CEO”) notified petitioner that J.R. would be suspended, effective December 15, 2010, and that a suspension hearing was scheduled for December 21, 2010.

J.R. was charged with being in possession of a dangerous weapon, an empty air gun, on December 13, 2010, at Art and Design High School.


A hearing was held on December 21, 2010, after whichthe CEO sustained the charge in a written report dated January 3, 2011, and imposed a suspension of 41 school days, effective December 15, 2010, through February 18, 2011. In that report, the CEO noted that all records relating to the suspension would be expunged upon J.R.’s graduation or permanent departure from respondent’s schools, “provided that there are no additional incidents of misbehavior resulting in a Principal’s or Superintendent’s suspension, which is ultimately sustained.”


J.R. appealed to respondent, who sustained the CEO’s determination by decision dated April 6, 2011. Specifically, respondent found that substantial and competent evidence existed to sustain the charge against J.R.; that the search of J.R. was not unreasonable and did not violate the Chancellor’s regulations or the Fourth Amendment; and that even if the search was unreasonable, the exclusionary rule is inapplicable in student disciplinary proceedings. This appeal ensued.


Petitioner seeks to have the suspension overturned and expunged from J.R.’s records. Petitioner contends that the paintball gun was obtained during an unreasonable search of J.R.’s backpack, and that, as a result, its admission into evidence in the student disciplinary hearing violates the student discipline code, the Chancellor’s regulations, and the Fourth Amendment of the United States Constitution. Petitioner also argues that the hearing officer did not hold the school to its burden of proof by competent and substantial evidence, and instead, improperly applied the “weight of the credible evidence” standard.


Respondent argues that substantial and competent evidence supports the student’s suspension and that petitioner has not met her burden of establishing that she is entitled to the requested relief. Respondent further argues that the search of the student’s bag was not unreasonable; that the paintball gun was properly admitted as evidence in the suspension hearing; and that even if the exclusionary rule did apply, the student’s suspension should be sustained.


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). To the extent J.R.’s suspension has been served, the appeal is moot. Petitioner’s request for expungement is also moot. At the time of the incident, J.R. was a 17year-old high school junior. According to the affirmation submitted by respondent’s counsel pursuant to 8 NYCRR §276.5(a), during the 2012-2013 school year, J.R. attended respondent’s Lower East Side Prep High School, from which he voluntarily withdrew on April 8, 2013, when he was over19 years old. In respondent’s district, a student’s permanent cumulative record is maintained by the school in which the student was last enrolled. Respondent’s attorney affirms that J.R.’s cumulative record maintained by Lower East Side Prep High School does not contain any record of suspension. Further, respondent has directed the principal of the Art and Design High School to ensure that any record of suspension is expunged from the records it maintains for

J.R. by September 9, 2013, when the school re-opens for the2013-2014 school year. Accordingly, the appeal must be dismissed as moot.

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