Decision No. 12,897

(March 29, 1993)

Brown & Dierdorf, Esqs., attorneys for respondents, Paul W. Brown,

Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the dismissal of his sons, Brett and Jody, from respondent school district's varsity wrestling team and their suspension from school for five and three days, respectively. Petitioner also seeks the removal of respondents Melia, Byars, Brown and Rishel from their administrative positions in the school district. The appeal must be sustained in part.

Petitioner's sons are high school students in the Carthage Central School District and, until their suspension, were members of the high school varsity wrestling team. On December 17, 1991, Brett was suspended from school for five days pursuant to Education Law '3214 and from participation in all sports and extracurricular activities for the remainder of the school year for endangering the welfare of a female student. On the same day, Jody was suspended from school for three days and from participation on the wrestling team for the remainder of the current season for obstructing the investigation of an incident involving members of the wrestling team, including his brother, Brett.

The incident precipitating the suspensions occurred on December 16, 1991. According to the record, members of the varsity wrestling team, while waiting in a high school cafeteria for practice to begin, pulled two female students into the cafeteria; held one of them down on a wrestling mat while one of the team members exposed his buttocks to her. The other female student ran from the cafeteria and reported the incident to respondent Janita Byars, an assistant principal. By that time, the victim had been released and also reported the incident to Dr. Byars. Dr. Byars called respondent Brown, the district's athletic director, to investigate the incident. The victim identified petitioner's son, Brett, as one of the team members who had held her down on the mat.

In the course of their investigation, respondents Byars and Brown obtained written and oral statements from the two female students involved in the incident and from members of the wrestling team. In addition to the victim's written statement, one of the wrestlers stated that Brett had held the girl's head during the incident. Respondents Byars and Brown also obtained statements from members of the wrestling team who indicated that Jody had told them what to say if questioned about the incident.

Petitioner met with respondents Byars and Brown on December 17, 1991 to discuss the incident. On the same day, respondent Melia, the high school principal, suspended Brett and Jody from school for five and three days, respectively. As previously noted, the students were also suspended from further participation on the wrestling team. The suspensions were based upon Brett's purported involvement in the December 16, 1991 incident and Jody's obstruction of the investigation.

Petitioner was also required to meet with respondent Byars on December 20, 1991 and January 7, 1992, the dates for Jody and Brett's respective readmissions to school. At the meetings he was offered an opportunity to review the incident again with respondents Byars and Brown. Although he declined the opportunity on December 20, petitioner, his wife and their attorney did discuss the matter again with respondents Byars and Brown on January 7, 1992.

By order to show cause dated January 22, 1992, petitioner challenged in State Supreme Court the discipline imposed on his sons, alleging that the school administrators had denied his right to appeal the suspensions to the Carthage Board of Education. That proceeding was dismissed for failure to exhaust administrative remedies. On February 5, 1992, petitioner renewed his request to meet with the board. Respondent superintendent notified petitioner the next day that the board of education would hear his appeal. On February 10, 1992, petitioner and his wife appeared before the board of education. By letter dated February 26, 1992, respondent board of education notified petitioner that it would uphold both academic suspensions. With respect to the athletic suspensions, the board indicated that Jody would be permitted to compete in the Spring 1992 season and that Brett could request review of his status with the athletic director. Petitioner initiated this appeal.

Petitioner challenges the discipline imposed upon his sons and requests their reinstatement on the varsity wrestling team. He also asks that respondents Byars, Brown and Rishel be removed from their administrative positions. Petitioner alleges that respondents denied his sons due process before imposing the academic and athletic suspensions. He also asserts that respondents' initial denial of his request to appeal the suspensions to the Carthage Board of Education was improper. He seeks removal of respondents Byars, Brown and Rishel for denying him due process.

Respondents argue that petitioner's sons received the due process to which they were entitled, that both the academic and athletic suspensions are supported by the record, and that there is no basis for removing respondents Byars, Brown and Rishel.

As a preliminary matter, respondents raise a procedural argument. Respondents indicate that, since the 1992 varsity wrestling season ended on March 6, 1992, that part of petitioner's appeal seeking his sons' reinstatement to the wrestling team for the 1992 season is moot. The Commissioner of Education will decide only matters in actual controversy, and will not render a decision on a state of facts which no longer exists, or which subsequent events have laid to rest (Appeal of Hmiel, 30 Ed Dept Rep 86). In this case petitioner's request for a stay was denied. In light of the fact that the 1992 varsity wrestling season ended soon after this appeal was initiated, I must dismiss that part of the appeal as academic.

To the extent petitioner seeks expungement of the academic suspensions from his sons' records, the matter is not moot. Petitioner raises two procedural challenges with respect to the suspensions. First, he alleges that on December 17, 1991 and January 7, 1992 he asked to appeal the suspensions to the Carthage Board of Education, but his requests were improperly denied. Although respondents deny that petitioner's requests were refused, the record indicates that, despite petitioner's requests, he was not placed on the board's agenda until February 10, 1992 - after he initiated the Article 78 proceeding and then almost two months after the incident had occurred. Although the board eventually considered petitioner's appeal, respondents' failure to provide a timely appeal was indeed improper. Respondents are admonished to ensure that, in the future, parents are promptly advised of their right to appeal an administrative decision to the board of education and, further, to ensure that such an appeal is promptly addressed by the board.

Petitioner also alleges that he was not afforded an opportunity to ask questions of complaining witnesses regarding the December 16, 1991 incident, as required by Education Law '3214. Education Law '3214(3)(d) provides that in suspensions of five days or less:

The record establishes that, prior to the students' suspensions from school, petitioner met with respondents Byars and Brown to discuss the incident. On December 20, 1991, petitioner's attorney submitted a written request for an opportunity to discuss the matter with complainants. There is no evidence, however, that petitioner was afforded the opportunity to question the students whose complaints gave rise to the suspensions. In addition, there is no indication that the principal was present at any of the conferences, as required. As such, the procedures in this case did not meet the standards of fairness established by Education Law '3214(3)(d) (see, Appeal of Somers, 32 Ed Dept Rep ___, Decision No. 12877, dated January 8, 1993; Appeal of Allert, 32 id. 242). The record also indicates that the conferences held on December 20, 1991 and January 7, 1992 were scheduled as conditions for the students' readmission to school. Conferences offered only after the completion of a suspension do not satisfy the due process requirements of Education Law '3214(3)(d). Accordingly, the students' records relating to their respective suspensions from attendance at school must be expunged. Finally, to the extent that Brett and Jody's readmission to school were conditioned upon the parents' attendance at a conference, such conditional readmission is improper (see, Appeal of Holliday, 29 Ed Dept Rep 373; Appeal of Ezard, 29 id. 135).

Petitioner also requests that I remove respondents Byars, Brown and Rishel from their respective positions as principal, athletic director and superintendent of schools, based on their failure to afford his sons adequate due process. Education Law '306 empowers the Commissioner to remove trustees, members of a board of education, clerks, collectors, treasurers, district superintendents, superintendents of schools or other "school officers" for certain willful violations or neglect of duty. Neither the assistant principal nor an athletic director is a school officer. As such, neither respondent Byars or Brown is subject to removal under Education Law '306 (Appeal of Danison, 31 Ed Dept Rep 169).

With respect to respondent Rishel, an officer may be removed from office pursuant to '306 when it is proven to the satisfaction of the Commissioner that the officer committed a willful violation or neglect of duty under the Education Law (Education Law '306[1]). The petitioner bears the burden of demonstrating a clear legal right to the relief requested (Application of Shader, 31 Ed Dept Rep 252). Petitioner has failed to allege in his petition or establish on the record that the superintendent's action constituted a willful violation of law or neglect of duty. Consequently, there is no basis for granting petitioner's request.

Petitioner's request for attorneys' fees must also be denied. The Commissioner of Education lacks authority to award attorneys' fees in a '310 appeal (Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 212). Finally, I have reviewed petitioner's other arguments and find them without merit.

THE APPLICATION IS DENIED, AND THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents expunge from the records of Brett Ferguson any reference to his academic suspension dated December 17, 1991, and

IT IS FURTHER ORDERED that respondents expunge from the records of Jody Ferguson any reference to his academic suspension dated December 17, 1991.

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