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Decision No. 17,571

Appeal of S.C., on behalf of his son R.C., from action of the Board of Education of the Rocky Point Union Free School District regarding student discipline.

Decision No. 17,571

(January 17, 2019)

Kevin A. Seaman, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Rocky Point Union Free School District (“respondent”) to impose discipline upon his son (“the student”).  The appeal must be dismissed.

     At all times relevant to this appeal, the student attended respondent’s high school.  The record indicates that, on March 14, 2018, the student was assigned one day of in-school suspension, to be served on March 15, 2018, for leaving the school building on March 14, 2018.  The student also received a three-day suspension from extracurricular activities.

In a letter to petitioner dated March 28, 2018, the high school principal indicated that she had “determined to expunge from [the student’s record]” any reference to the in-school suspension imposed on March 14, 2018.

In a letter from the board president to petitioner dated April 9, 2018, the board president reiterated that, “[a]s noted by the [p]rincipal, your child’s file has been cleansed of any reference to the disciplining [sic] that you seek to challenge.”  The board president further indicated that the board could not review the facts of the underlying suspensions since they had already been expunged from the student’s record.

In a letter dated June 19, 2018, the board president indicated that the board had reviewed petitioner’s appeal at a meeting held on June 18, 2018 and that it would not “annul” the principal’s March 14, 2018 suspension as requested by petitioner.  The board president again indicated that all reference to discipline issued on March 14, 2018 had been expunged from the student’s record.  This appeal ensued.

Petitioner argues that the student’s conduct did not warrant discipline under respondent’s code of conduct.  Petitioner contends that, while the superintendent had previously represented to the community that a student who took part in a planned walk out on March 14, 2018 would face “discipline,” petitioner argues that discipline is different from suspension.  Petitioner also complains about the process by which the suspensions were imposed and argues that respondent did not adhere to its own policy when its appeals committee refused to consider his appeal of the student’s in-school and three-day extracurricular suspensions.  Petitioner additionally complains that he did not receive written notice of the student’s in-school suspension until after the suspension had commenced and received no written notice of the extracurricular suspension.  Petitioner further contends that “no meeting was conducted or publicized under the laws of the [S]tate of New York prior to [respondent’s] letter of April 9, 2018 being issued ....”  Finally, petitioner complains that respondent marked the student as “tardy” on March 14, 2018 and argues that this is inaccurate.  For relief, petitioner seeks “annulment” of the student’s suspension.

Respondent denies petitioner’s contentions and argues that the appeal must be dismissed as moot because respondent has expunged all reference to the student’s in-school and three-day extracurricular suspensions.

First, to the extent petitioner asserts claims on behalf of other students who may have received discipline on March 14, 2018, such claims must be dismissed for lack of standing.  While petitioner has standing to bring this appeal on behalf of his son, he lacks standing to assert the rights of others (Appeal Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).

Additionally, to the extent petitioner complains that respondent acted in violation of the Open Meetings Law, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  According to the record, respondent has expunged from the student’s record any reference to the disciplinary measures taken against the student on March 14, 2018, which would appear to include the student’s in-school suspension imposed on that day.  The record further reflects that respondent communicated this determination to petitioner in letters dated April 9, 2018 and June 19, 2018.  Additionally, in response to a request from my Office of Counsel pursuant to §276.5 of the Commissioner’s regulations, respondent clarified that it also expunged all reference to the three-day extracurricular suspension and possesses no records concerning such suspension.  Therefore, no further meaningful relief can be granted with respect to petitioner’s challenge to the discipline imposed and the appeal must be dismissed (Appeal of S.V., 55 Ed Dept Rep, Decision No. 16,829).

Although petitioner argues that the suspensions should be “annulled” from the student’s record instead of expunged, petitioner has not explained any practical distinction between these concepts.  The student served both suspensions, and respondent avers that the student’s record now contains no reference to such suspensions.  Petitioner additionally suggests that the matter is not moot because, expungement of the student’s suspension notwithstanding, the student and other students disciplined on March 14, 2018 will be required to indicate “on any application for a government job or college, law school application, or even admission to the bar ... that they were disciplined in [h]igh [s]chool.”  These concerns, however, are hypothetical and speculative, and I do not find that they render this a live controversy.

Finally, to the extent petitioner requests that respondent amend the student’s record to remove any reference to him being “tardy” on March 14, 2018, the amendment of student records is governed by the federal Family Educational Rights and Privacy Act (“FERPA”) (20 USC §1232[g]) and its implementing regulations (see 34 CFR §§99.20, 99.21, 99.22).  Specifically, 34 CFR §99.20 provides that a parent or eligible student who believes that the student’s record contains information that is inaccurate, misleading or in violation of the student’s right to privacy may request that his or her school district amend the record and, if denied, may request a hearing pursuant to 99 CFR §§99.21 and 99.22.  The Commissioner lacks jurisdiction to consider FERPA claims involving the accuracy of the contents of student records (Appeal of V.S., 58 Ed Dept Rep, Decision No. 17,508).  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 USC §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502).