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Decision No. 18,234

Appeal of R.C., on behalf of his child, from action of the Board of Education of the Yorktown Central School District regarding student discipline.

Decision No. 18,234

(January 31, 2023)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Julie M. Shaw, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Yorktown Central School District (“respondent”) to impose discipline upon his child (the “student”).  The appeal must be dismissed.

The student attended respondent’s high school during the 2021-22 school year.  On February 18, 2022, the student skipped economics class and went to the cafeteria.  At some point, the student played music from his cellphone.[1]  A cafeteria staff person asked the student to turn the music down; he did not comply.  The staff person called an assistant principal, who spoke to the student about his conduct.  During the ensuing conversation, the student spoke to her in a loud and disrespectful manner.  The record reflects that the student was thereafter suspended for five days, from February 28 through March 4, 2022.

In a notice of hearing dated February 28, 2022, the district informed the student that it would convene a long-term suspension hearing concerning his conduct on February 18.  Respondent alleged that the student’s conduct endangered the safety, morals, health, or welfare of others and constituted insubordination and disorderly/disruptive conduct.

A long-term suspension hearing, presided over by a hearing officer, occurred over two days.  In findings and recommendations dated March 14, 2022, the hearing officer recommended that the student be found guilty of the charges against him.  He also recommended suspension through the remainder of the 2021-22 school year with an early return option if the student made a “written application to the Superintendent at the end of April seeking … readmission to School ….”  The superintendent adopted the findings and recommendations in a letter dated March 18, 2022.  Petitioner appealed this determination to respondent, which denied his appeal on May 6, 2022.  This appeal ensued.  Petitioner’s request for interim relief was granted, in part, on May 18, 2022.

Petitioner alleges that respondent failed to produce competent and substantial evidence of the student’s guilt.  Petitioner further contends that the district’s witnesses offered inconsistent testimony.  Petitioner additionally argues that because the district discussed prior suspensions during the penalty phase of the hearing, it “opened the door” to review of those determinations.  Finally, petitioner argues that the length of the suspension was excessive.  For relief, petitioner seeks the student’s immediate reinstatement to school and expungement of four short-term suspensions, including a five-day suspension pertaining to the incident described herein, from his record.

Respondent denies petitioner’s contentions and argues that it produced competent and substantial evidence of the student’s guilt.[2]

The appeal must be dismissed, in part, as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  The long-term suspension at issue in this appeal has ended and petitioner does not seek its expungement from the student’s record.  Accordingly, there is no meaningful relief that can be granted in connection therewith (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,943; Appeal of T.W., 54 id., Decision No. 16,728).[3]

Petitioner’s request for expungement of three prior short-term suspensions must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

These short-term suspensions—imposed in January 2020, December 2020, and June 2021—were discussed during the penalty phase of the hearing as part of the student’s anecdotal record.  Petitioner’s argument that the district “opened the door” to adjudication of these suspensions is without merit.  Actual knowledge of the facts underlying a claim begins the 30-day period in which to bring a proceeding (see Appeal of N.M., 59 Ed Dept Rep, Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483; Appeal of O’Brien, 51 id., Decision No. 16,316, affd 112 AD3d 188 [3d Dept 2013]).  Petitioner does not allege that he or the student were unaware of these suspensions at the time they were imposed.  As such, petitioner’s challenges to these suspensions must be dismissed as untimely (Appeal of J.L. and S.M., 60 Ed Dept Rep, Decision No. 17,930; Appeal of J.H. and R.H., 57 id., Decision No. 17,317).

Finally, petitioner has not met his burden of proving that the short-term suspension arising from the February 18 incident should be expunged from the student’s record.  His only claim is that respondent did not adduce competent and substantial evidence of the student’s guilt.  Assuming that respondent’s proof consisted of the evidence it presented at the long-term suspension hearing, this claim is without merit.[4]  At the hearing, respondent produced direct, unrebutted testimony that the student engaged in the charged conduct.[5]  Petitioner submitted no evidence or testimony in response.  As such, the hearing officer reasonably concluded that the district established the student’s guilt through competent and substantial evidence (see Appeal of J.D. and J.D., 58 Ed Dept Rep, Decision No. 17,551).  Accordingly, petitioner is not entitled to expungement of the short-term suspension.

In light of this determination, it is unnecessary to consider the parties’ remaining contentions.




[1] Other portions of the record refer to the sound coming from a “speaker.”  It is unclear, but immaterial, whether the speaker was internal or external to the phone.


[2] Respondent also contends that the petition must be dismissed as it was not served with a copy of the notice of petition.  For the reasons articulated in Appeal of J.G. (62 Ed Dept Rep, Decision No. 18,185), I decline to dismiss the petition on this basis.


[3] Petitioner’s request that the student be immediately reinstated to school was rendered moot by the May 18, 2022 stay order.  Although the student did not serve the entirety of his suspension, respondent would be precluded, at this juncture, from imposing an additional period of suspension beyond its expiration (Appeal of N.V.D., 60 Ed Dept Rep, Decision No. 17,985).  


[4] Petitioner did not submit a copy of the written notice explaining the basis for respondent’s determination relating to the short-term suspension.  Petitioner merely asserts that he “received … notice” of the short-term suspension on February 28, 2022, which respondent admits.


[5] Petitioner’s arguments that this testimony was not credible or that respondent was obligated to produce additional “corroborating” evidence are wholly without merit.