Decision No. 12,819

(October 5, 1992)

SOBOL, Commissioner.--Petitioner appeals from respondent's affirmance of the decision to suspend him from attendance for five days. The appeal must be dismissed.

Petitioner, a senior in respondent's high school at the time this appeal was commenced, has since graduated. In response to a series of fights on school grounds, respondent's high school principal informed all students on March 11, 1992 that any students involved in fighting would be suspended from school. On March 12, 1992, petitioner allegedly punched another student, Michael V., in the face. Immediately following the incident, the principal questioned the victim and a witness, both of whom confirmed that petitioner had punched Michael V. While the principal spoke with the witness, the assistant principal questioned petitioner, who denied punching the student.

Following the investigation, petitioner was suspended from school for five days. Petitioner's parents were informed of the suspension by letter dated March 13, 1992. On that same day, petitioner and his father met with the principal and the assistant principal. The principal informed petitioner and his father that, based on the investigation, the principal, in consultation with the superintendent and the assistant principal, had determined that petitioner had punched another student. Although petitioner reiterated that he had not punched the student, the principal decided that the suspension would stand. Later that day petitioner's father and mother returned to see the principal. However, the suspension was not lifted.

On March 16, 1992, petitioner's mother met with the superintendent, who affirmed the suspension. On March 24, 1992, petitioner appealed to the board of education asserting, for the first time, that the student had kicked him in the groin. Although petitioner continued to insist that he never hit the student, he stated that if he did, he was simply acting in self defense.

On April 3, 1992, the president of the board of education informed petitioner's parents that the board was upholding the suspension. On April 22, 1992, the board, in response to another request initiated by petitioner's mother, affirmed its decision. This appeal ensued.

Petitioner maintains that the procedures followed in the investigation and suspension violated due process. In particular, petitioner alleges that the decision to suspend him was arbitrary and that he was never given an opportunity to present his side of the story. Petitioner requests that the suspension be expunged from his record.

Respondent asserts that petitioner's rights were not violated. Respondent argues that petitioner was given numerous opportunities to present his version of the facts. Respondent further contends that the penalty was appropriate to the alleged behavior. In any event, respondent argues that the appeal is moot since the student has graduated and the record of his suspension has been expunged.

With regard to petitioner's request for expungement, I note that the suspension was served prior to the commencement of this appeal, that the student has now graduated, and that, according to respondent, his record has been expunged. Since I will only decide matters in controversy and will not render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Wilhelm and Lynn R., 31 Ed Dept Rep 509; Appeal of Vachon, 28 id. 276; Matter of Rondot, 27 id. 143), this matter is moot. Accordingly, the appeal is dismissed.

Although the appeal is procedurally defective, I will nevertheless comment upon the merits. The procedures governing suspensions of student privileges or the imposition of discipline must be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of Forster, 31 Ed Dept Rep 443; Appeal of Danison, 31 id. 169; 8 NYCRR '100.2(l)(4)). Additionally, Education Law '3214(3)(d) states that in a suspension of five days or less:

The record establishes that prior to his suspension, petitioner met with the assistant principal to explain his version of the events. Additionally, the record indicates that various school administrators, including the principal and superintendent, interviewed the victim and a witness before determining petitioner's guilt. Furthermore, on the first day of the suspension, petitioner and his father met with the principal who actually imposed the suspension. Thereafter, petitioner's mother and father met with the principal as well, followed by a meeting with the superintendent. Subsequently, the board of education reviewed the matter. Although petitioner and his parents were clearly given numerous opportunities to present petitioner's side of the story, there is no evidence that petitioner's parents were ever afforded an opportunity to ask questions of complaining witnesses, during either of the meetings with the principal. Therefore, I am unable to ascertain whether the procedures followed by respondent, in this case, met the standard of fairness articulated in Forster, supra, or required under Education Law '3214(3)(d). However, since the appeal is moot, it must nevertheless be dismissed on that ground, without regard to the merits of petitioner's case.

THE APPEAL IS DISMISSED.

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