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Decision No. 16,597


 Appeal of C.K., on behalf of her son T.L., from action of the Board of Education of the South Country Central School District regarding student discipline.

Decision No. 16,597

(March 12, 2014)

Long Island Advocacy Center, Inc., attorneys for petitioner, Wendy Gildin, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

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

During the 2010-2011 school year, T.L. attended twelfth grade in respondent’s district. On December 1, 2010, a physical altercation occurred between two students in the high school. The high school principal investigated the incident by reviewing surveillance footage and discussing the incident with staff present during the incident.

According to the principal, the investigation revealed that T.L. was present during the altercation, used his cell phone to videotape the altercation and interfered with faculty and staff who were intervening in the altercation.

By letter dated December 1, 2010, the principal notified petitioner that her son would be suspended for five school days, from December 2, 2010, through December 9, 2010, for endangering the health, safety and welfare of himself and others. Specifically, the letter stated that T.L. interfered with faculty and staff intervention in a physical confrontation between two students, placed his hands upon a teacher and violated school policy by employing his cell phone camera to record a video of the confrontation. The letter further advised petitioner of T.L.’s due process rights prior to the suspension and that a referral would be made to the superintendent for possible further disciplinary action.

By letter dated December 2, 2010, the superintendent charged T.L. with the above conduct and scheduled a superintendent’s hearing for December 9, 2010. At the


hearing, T.L. was found guilty of the charged conduct, and by letter dated December 10, 2010, T.L. was suspended for the remainder of the 2010-2011 school year. The decision also stated that alternative instruction would not be provided because T.L. was over compulsory school age.

By letter dated December 20, 2010, petitioner’s counsel wrote to respondent’s counsel requesting reconsideration of the superintendent’s decision not to provide T.L. with alternative instruction during his suspension from school. By letter dated December 29, 2010, respondent’s counsel notified petitioner’s counsel that petitioner’s request was denied and alternative instruction would not be provided.

By letter dated December 30, 2010, petitioner appealed the superintendent’s decision to respondent, challenging both the suspension imposed and the refusal to provide T.L. with alternative instruction. By letter dated January 20, 2011, respondent’s counsel informed petitioner’s counsel that respondent had denied petitioner’s appeal. Thereafter, by letter dated January 25, 2011, the district clerk notified petitioner that her appeal was denied and that respondent upheld the decision to suspend T.L. This appeal ensued. On February 15, 2011, petitioner’s request for interim relief was denied.

Petitioner asserts that T.L.’s suspension for the remainder of his senior year constitutes a permanent suspension and that such a penalty is excessive and unwarranted under the circumstances. She also contends that T.L. is entitled to alternative instruction.

Respondent maintains that T.L.’s suspension through the end of the school year is not a permanent suspension from school. Respondent asserts that the suspension imposed is appropriate and, further, that T.L. is not entitled to alternative instruction during the suspension period. Respondent also asserts that the appeal must be dismissed for failure to join a necessary party.

I will first address a procedural matter. Respondent contends that the appeal must be dismissed for failure to join the superintendent of schools as a respondent, arguing that he is a necessary party to the appeal. Respondent’s claim is unavailing. Pursuant to Education Law §3214(3)(c), petitioner appealed to respondent from the superintendent’s December 10, 2010 decision. Respondent denied petitioner’s appeal and upheld T.L.’s suspension by letters dated January 20 and 25, 2011, and it is that action which is the subject of this appeal. Petitioner makes no allegations that the superintendent acted


improperly in conducting the hearing, nor does she seek any relief against him. Consequently, the superintendent of schools is not a necessary party and failure to join him as a respondent does not warrant dismissal (Appeal of a Student Suspected of Having a Disability, 49 Ed Dept Rep 402, Decision No. 16,063; Appeal of R.C., 49 id. 275, Decision No. 16,023).

However, 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 T.L. was suspended until June 30, 2011. Petitioner’s request for interim relief was denied and T.L. served his suspension. Petitioner does not seek expungement of T.L.'s record and there is no meaningful relief that can be granted. Accordingly, petitioner’s claims regarding her son’s suspension are moot (Appeal of D.E., 53 Ed Dept Rep, Decision No. 16,571; Appeal of a Student with a Disability, 52 id., Decision No. 16,375; Appeal of H.B., 49 id. 433, Decision No. 16,073, aff’d, Index No. 6819-10, Sup. Ct., Albany Co., [McGrath, J.], Jan. 14, 2011). Similarly, the appeal is also moot to the extent petitioner alleges that respondent failed in its responsibility to provide alternate instruction for T.L. (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,434; Appeal of C.M., 50 id., Decision No. 16,142).

Even if the appeal were not moot, the suspension would be upheld. In challenging the suspension as excessive, petitioner incorrectly asserts that T.L. was permanently suspended. The record indicates that T.L. was not permanently suspended but, instead, was suspended from December 2, 2010 only through the end of the 2010-2011 school year – approximately seven months. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved. The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).


The record indicates – and petitioner does not contest - that T.L. recorded a video of the confrontation and placed his hands on a teacher trying to quell the confrontation, thus endangering the health, safety and welfare of himself and others. Given the seriousness of the conduct and considering T.L.’s anecdotal record, which includes 13 prior instances of misconduct, I cannot conclude that the penalty imposed by respondent is excessive (see e.g. Appeal of Ezard, 29 Ed Dept Rep 135, Decision No. 12,245). Therefore, I decline to substitute my judgment for that of respondent.