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Decision No. 16,572

* Subsequent History: Matter of Terwilliger v King; Supreme Court, Albany County; Judgment dismissed petition to review; March 12, 2014. *

Appeal of R.T., on behalf of her son D.T., from action of the Union-Endicott Central School District regarding student discipline.

Decision No. 16,572

(October 28, 2013)

Law Office of Ronald R. Benjamin, attorneys for petitioner, Ronald R. Benjamin, Esq., of counsel

The Law Firm of Frank W. Miller, attorneys for respondent, Frank W. Miller, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Union-Endicott Central School District (“respondent”) to suspend her son.  The appeal must be dismissed.

During the 2011-2012 school year, petitioner’s son, D.T., was an eighth-grade student in respondent’s district.  D.T. and his friend, V.O., would often play a video game called “Modern Warfare III,” together with others through a chat line.  While the parties dispute many of the underlying facts, including the sum and substance of statements made in the chat room as well as dates and individuals involved, the parties agree that in May 2012, D.T. and V.O. had some interaction in a private chat room with J.K., another student in respondent’s district.  According to petitioner, on the evening of May 25, 2012, J.K. entered the chat room and told D.T. to tell V.O. that J.K. was going to beat V.O. up when he came to school the next day.  J.K. also allegedly made other derogatory comments toward V.O. in a chat room on May 24, 2012.  Petitioner claims that on May 31, 2012, at approximately 12:00 p.m., in the schoolyard during lunch recess, J.K. and another student, M.L., approached V.O., violently threw him to the ground and said, “let’s smear the queer.” 

According to respondent, on May 31, 2012, at approximately 12:17 p.m., J.K. and M.L. reported to school officials that “on May 16, 2012, [V.O.] told [J.K. and M.L.] that he was planning an invasion on Jennie F. Snapp Middle School” that “would be the same as what happened at Columbine.”  J.K. and M.L. apparently submitted nearly identical written statements.  M.L.’s statement read as follows:

I was invited by [V.O.] and [D.T.] to be on an Xbox Chat Line.  There are eight people who can participate.  We have headphones that we can use if you want only certain people to hear what is being said.  [V.O.] and [D.T.] wanted to have a private chat with [J.K.] and myself.  They told us about how they wanted to invade Jennie F. Snapp Middle School towards the end of the school year.  They wanted to make it look like the shooting that happened at Columbine. [V.O.] spoke of having switchblades and knives. He said he was going to get a hunting shotgun.  Both [V.O.] and [D.T.] talk about harming people.  [D.T.] said he dreams every day of his life of killing someone.  He said that he thinks killing someone with his bare hands would be better than using a weapon.  I only see them at lunch time.  Not many people like them.

J.K.’s statement virtually mirrored that of M.L., but included additional allegations that V.O. “brought [switchblades and knives] to school and has had them in his locker.”  J.K.’s statement also included the following:

One time when [V.O.] was talking to everyone on the chat line about weapons, I didn’t respond to him.  He asked me why I didn’t reply and said that he was going to fight me.  I came in today to report this because at recess time, [V.O.] came charging at me and pushed me.  When he came face to face with me, I felt this wasn’t a fluke about all he has been saying and that me [sic] means it.

Following the report by J.K. and M.L., the principal contacted the police, who arrived at the school by 12:30 p.m. and questioned witnesses, including D.T.  According to respondent, D.T. admitted the alleged conduct in the presence of the principal, petitioner, and the questioning police officers.  According to petitioner, D.T. was “browbeaten and intimidated” into making such admissions after two hours of interrogation, and the principal was not in the room during said questioning.

By letter dated June 1, 2012, the principal notified petitioner that D.T. would be suspended for five days beginning on June 1, 2012.  The letter noted that “[D.T.] has admitted to planning a school invasion/shooting with a friend and to voicing his plans on XBOX Live to other JFS students.  [D.T.] also shared with JFS administration that he dreams every day of killing people and believes that killing them with his bare hands would feel the best.”

By separate letter dated June 5, 2012, the superintendent scheduled a superintendent’s hearing for June 7, 2012.  D.T. was charged as follows:

Charge #1:     On or about Thursday, May 31, 2012, [D.T.] engaged in conduct that was violent, by threatening to use a weapon on students, which is [a] violation of the District’s Code of Conduct.

Charge #2:     On or about Thursday, May 31, 2012, [D.T.] engaged in conduct that endangered the safety, morals, health and welfare of others, by threatening to come into JFS and shoot students, which is a violation of the District’s Code of Conduct.

A hearing was held on June 7, 2012 before the superintendent, who acted as hearing officer.  At the hearing, petitioner, petitioner’s mother, and D.T. appeared on behalf of D.T., pro se, with petitioner acting as “spokesperson,” and the principal appeared on behalf of respondent.  No witnesses were called but the statements of J.K. and M.L. were read into evidence by the principal.  Following the hearing, the superintendent sustained the charges in a written report dated June 11, 2012, and imposed a suspension of one full year, until May 30, 2013.

Petitioner subsequently retained counsel to represent D.T.’s interests and appealed to respondent, and an appeal hearing was held before respondent in executive session on August 6, 2012.  Thereafter, respondent sustained the superintendent’s determination by decision dated August 20, 2012.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 21, 2012.

Petitioner asserts that D.T.’s due process rights were violated because respondent failed to provide timely written notice of the superintendent’s hearing, and because petitioner was not permitted to question complaining witnesses during the hearing.  Petitioner also contends that no testimony by any sworn witness was taken at the superintendent’s hearing; that respondent failed to conduct a proper investigation; and that respondent’s determination was arbitrary and capricious and not supported by substantial evidence.   Finally, petitioner asserts that respondent violated D.T.’s “right to petition the government for redress of grievance” under the First Amendment of the United States Constitution by rescinding its decision to allow D.T. to return to school under a behavior contract since D.T. planned to appeal respondent’s determination.  Petitioner seeks to have the suspension reversed and the charges dismissed, or alternatively, remanded for “further proceedings.”  

Respondent raises a number of affirmative defenses.  It contends, among other things, that substantial evidence and a preponderance of evidence supports the student’s suspension; that respondent has “substantially complied with the procedures of due process and the requirements of Education Law §3214”; that any delay in providing written notification was de minimus and that the criminal investigation “slowed and delayed the hearing process”; and that petitioner’s allegations of bullying do not justify D.T.’s “egregious” violation of respondent’s code of conduct.  Respondent further argues that petitioner has waived her right to contest the timeliness of the written notice of the hearing by failing to make timely and appropriate challenges at the superintendent’s hearing and respondent’s appeal hearing. 

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 record reflects that petitioner’s son was suspended until May 30, 2013.  Petitioner’s request for interim relief was denied and D.T. served his suspension.   Petitioner does not seek expungement of her son’s records.  Accordingly, petitioner’s claims regarding her son’s suspension are moot (see Appeal of a Student With a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of H.B., 49 Ed Dept Rep 433, Decision No. 16,073, aff’d, Index No. 6819-10, Sup. Ct., Albany Co. [McGrath, J.], Jan. 14, 2011).   

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