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Decision No. 16,829

Appeal of S.V., on behalf of her son Z.V., from action of the Board of Education of the Churchville-Chili Central School District regarding student discipline.

Decision No. 16,829

(September 17, 2015)

Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Churchville-Chili Central School District (“respondent”) to suspend her son, Z.V., from school and interscholastic athletics.  The appeal must be dismissed.

During the 2013-2014 school year, Z.V. was a tenth grade student at respondent’s high school and a member of the Junior Varsity basketball team (“team”).  On January 25, 2014, Z.V. was involved in an incident in the school’s locker room.  According to the parties, Z.V. participated in a prank of another student - a member of the team - by having the student perform a “power sit-up.”  As described by both parties, a “power sit-up” prank involves two individuals demonstrating to the target of the prank the difficulty of performing a sit-up while another person supplies resistance with a blindfold.  The target is then asked to perform a sit-up while someone holds him or her down with a blindfold.  While the target is performing the sit-up, struggling against the resistance of the blindfold, another person squats in front of the target’s head.  The person providing the resistance on the blindfold unexpectedly releases it, causing the target’s face to touch, or come in close proximity to, the buttocks of the person squatting.  Z.V.’s role in this incident was to hold and release the blindfold.

Another student, and member of the team, along with the mother of the student who was the target of the prank, told the team’s coach about the incident.  The coach spoke with the target of the prank, as well as with Z.V. and seven of the other eight team members who were involved in the incident.  The coach reported this information to the Director of Health, Physical Education and Athletics (“director”) and to the high school principal (“principal”).  The eight students involved in the incident, including Z.V., were not permitted to participate in practice or the game scheduled for January 29, 2014, while school administrators investigated the incident.  This resulted in forfeiture of the game.  At the conclusion of the investigation, the principal recommended that Z.V. be disciplined for his role in the prank.

On January 30, 2014, petitioner was notified via telephone call and hand-delivered written notice, of the proposed charges and penalty.  Z.V. was charged with “[e]ngaging in conduct which endangered the health, safety and welfare of himself and/or others.”  Specifically, the letter stated that Z.V.:

participated in an incident where another student was duped into doing a
“power sit up.”  Such a sit up caused this student’s face to be in close proximity to another student’s buttocks.

The proposed penalty included a one-day suspension from school to be served on February 3, 2014, and suspension from three basketball games.  The notice also informed petitioner of Z.V.’s due process rights, including the right to question complaining witnesses at an informal conference. 

On January 31, 2014, petitioner attended an informal conference with the principal and the director.  After the meeting, the principal upheld the proposed academic and athletic suspensions and stated that, if Z.V. was not charged with additional incidents of misconduct prior to the beginning of his senior year, the suspensions would be expunged from his record. 

On February 4, 2014, petitioner appealed to the superintendent who upheld the principal’s decision.  On February 25, 2014, petitioner appealed to respondent.  Respondent upheld the disciplinary action and this appeal ensued. 

Petitioner argues that Z.V.’s academic and athletic suspensions were not warranted, that such penalty is excessive, and that Z.V.’s behavior did not fall within the scope of the charged misconduct.  Petitioner further argues that she did not receive proper notice of the incident. Petitioner requests that both the academic and athletic suspensions be expunged from Z.V.’s record and also asks that the Commissioner review and make changes to respondent’s “policy on communicating with parents.” 

Respondent claims that petitioner failed to demonstrate a clear legal right to the relief requested, that it complied with required due process procedures, and that the penalty imposed is appropriate. 

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 appeal must be dismissed as moot to the extent that petitioner seeks to vacate the suspensions because both suspensions have been served.  Petitioner’s request for expungement is also moot.  According to an affidavit submitted by respondent’s counsel in response to a July 13, 2015 letter from my Office of Counsel, because Z.V. has had no further disciplinary incidents, all references to the one-day suspension from school and three-game athletic suspension have been expunged from his record.  Therefore, petitioner’s request for expungement is academic.

Finally, to the extent that petitioner requests that I review respondent’s policy on communicating with parents, in an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). Moreover, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

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