Appeal of R.M. and L.M., on behalf of their son B.M., from action of the Board of Education of the Bridgewater-Leonardsville-West Winfield Central School District regarding student discipline.

 

 

(September 17, 2003)

 

Richard N. Bach, Esq., attorney for petitioners

 

Kowalczyk, Tolles, Deery & Johnston, LLP, attorneys for respondent, John S. Deery, Jr., Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal a determination by the Board of Education of the Bridgewater-Leonardsville-West Winfield  Central School District (referred to by the parties as "Mount Markham Central School District" and, hereinafter referred to as "respondent") to suspend their son, B.M., from school.  The appeal must be sustained in part.

During the 2001-2002 school year, B.M. was enrolled in Mount Markham High School in respondent"s district.  On June 10, 2002, an explosion occurred in the boys" restroom.  On June 13, 2002, petitioners were advised that B.M. was being suspended from school for five days, beginning June 14, 2002, for "intentionally damaging or destroying school property, using fireworks in school, committing act of violence, threat to health and safety of others."  A disciplinary referral attached to the June 13 letter alleged that B.M. received fireworks from two other students on Monday, June 10, asked another student to create a distraction so he could put a firecracker in the toilet, walked into the boys" restroom with two other students and, when the explosion occurred, was seen standing near the bathroom stall.  The disciplinary referral  indicated that B.M. said he only went in after the explosion.

At an informal conference with the principal on June 14, 2002, five students were present, some of whom were accompanied by their parents, including petitioners and B.M.  A superintendent"s hearing was held on July 1, 2002 and B.M. testified, as did the principal.  On July 15, 2002, the hearing officer recommended that B.M. be suspended for the first 30 days of the 2002-2003 school year and placed in restricted status, as to extracurricular activities and presence on school property.

 On August 1, 2002, the superintendent suspended B.M. for 30 calendar days of the fall 2002 semester, until October 4, 2002, and conditioned his return further by requiring him to meet with the superintendent and sign an agreement regarding his behavior.  In addition, for the entire first semester of the 2002-2003 school year, B.M. was restricted from extracurricular activities and school property, before and after school, except with the express approval or direction from the principal.

By letter dated August 23, 2002, petitioners appealed the suspension.  Petitioners" attorney sent additional letters on September 25, 2002 and October 10, 2002, inquiring about the status of the board"s deliberation.  In the September 25, 2002 letter, petitioners" attorney informed respondent that B.M. probably would not be returning to school.  By letter dated October 15, 2002, respondent"s attorney notified petitioners that respondent considered their appeal on October 8, 2002 and affirmed the superintendent"s decision.

Petitioners commenced this appeal on November 5, 2002.  On December 5, 2002, a grand jury filed a finding of no criminal conduct on charges brought against B.M. as a result of the June 10, 2002 incident.  On January 8, 2003, the superintendent offered petitioners a re-hearing.  Petitioners declined the offer on January 24, 2003.

Petitioners seek an order nullifying the suspension of B.M. and restoring his rights.  Petitioners contend that the district produced the principal as its only witness, and that he was permitted to testify on hearsay concerning written statements of three alleged student witnesses to the incident, introduced into evidence over an objection.  Petitioners contend that the district should have produced these students to testify and should have introduced the statements of all the other student witnesses.

Petitioners also contend that B.M. and another student testified that B.M. was not present in the boys" bathroom when the firecracker went off.  Petitioners contend that respondent"s decision was not based upon competent and substantial evidence and that the hearing produced no direct evidence of B.M."s guilt.  Petitioners further contend that respondent has not disclosed any of the terms or conditions of the agreement their son must sign to return to school, subjecting him to an arbitrary and capricious requirement.

Respondent contends that, with the exception of the requirement that petitioners" son sign an agreement regarding his behavior, the appeal is moot because the suspension and other sanctions have been served.  Respondent contends further that petitioners" son, who is eighteen years of age and enrolled at Mohawk Valley Community College, probably will not be returning to high school, making the appeal academic.

The appeal must be dismissed as moot with regard to the 30-day suspension and the one-semester restriction imposed on extracurricular activities and presence on school property.  The Commissioner of Education will only decide matters in actual controversy and will not render a determination on a set of facts which no longer exists or which subsequent events have laid to rest Appeal of Deborah F., 42 Ed Dept Rep ___, Decision No. 14,813; Appeal of R.R. and K.R., 41 id. 405, Decision No. 14,726; Appeal of Mace, 40 id. 110, Decision No. 14,433).  According to the record, petitioners" son has served the 30-day suspension and the one-semester restriction on extracurricular activities and presence on school property.  Since this disciplinary action has expired, and petitioners do not seek expungement of B.M."s records, petitioners" request for relief is moot (Appeal of Deborah F., supra; Appeal of E.F., 42 Ed Dept Rep ___, Decision No. 14,762; Appeal of K.M., 41 id. 318, Decision No. 14,699).

However, to the extent petitioners appeal the further condition that B.M. meet with the superintendent and sign an agreement with undisclosed terms, the appeal is not moot.  Until its execution, B.M. is effectively excluded from respondent"s schools for an indefinite period.

I have previously addressed the use of an agreement or contract of conduct in the context of student disciplinary proceedings.  In Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419, I upheld the use of a contract of conduct for a student who had been suspended in January 2000 for the remainder of the 1999-2000 school year after a superintendent"s hearing.  Pursuant to the contract of conduct, the student could be readmitted to the classroom on January 31, 2000, on probation, upon certain conditions.  The contract stayed imposition of the remainder of the suspension, upon the understanding that any violation of school rules would result in a re-imposition of the underlying suspension without the necessity of an additional hearing.

I found that the use of such a contract of conduct did not violate Education Law "3214 or the student"s due process rights, because the student already had a valid superintendent"s hearing and the suspension had been imposed in compliance with the due process requirements of "3214 (Appeal of Spensieri, supra).  The contract of conduct merely provided a way for the student to ameliorate the suspension by agreeing to certain conditions in return for probationary reinstatement into the classroom.  None of the conditions in the contract imposed any special rules or regulations on the student that were not similarly imposed on his fellow students (c.f. Appeal of a Student with a Disability, 42 Ed Dept Rep ___, Decision No. 14,818).

The instant contract, in contrast, effectively extends the initial suspension period rather than shortening it.  This has effectively resulted in a suspension of an indefinite duration without the justification of extraordinary circumstances (See Appeal of Dale C., 40 Ed Dept Rep 70, Decision No. 14,423; Appeal of McNamara, 37 id. 326, Decision No. 13,871; Appeal of Osoris, 35 id. 250, Decision No. 13,531).  In addition, a school district cannot condition a student"s return to school on participation in counseling services (Appeal of Cynthia and Robert W., et al., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Alexander, 36 id. 160, Decision No. 13,689; Appeal of Holliday, 29 id. 373, Decision No. 12,322).  Accordingly, respondent cannot continue to exclude petitioners" son from school until he agrees to such a condition.  Neither can respondent require community service as a condition of the student"s return to school under Education Law "3214, which limits to suspension from attendance the penalty that may be imposed under that statute (Appeal of Cynthia and Robert W., et al., supra; Appeal of Eddy, 36 id. 359, Decision No. 13,748; Appeal of Alexander, supra).  Respondent cannot require petitioners" son to enter into an agreement that includes this penalty in addition to the suspension petitioners" son has served under Education Law "3214.  Accordingly, I find the conditioning of B.M."s return to school upon execution of such an agreement to be improper, and I will substitute my judgment for that of respondent (Appeal of Coleman, 41 Ed Dept Rep 101, Decision No. 14,628; Appeal of Khan, 35 id. 322, Decision No. 13,557).

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent"s determination is annulled insofar as it requires execution of an agreement as a condition of B.M."s readmission to respondent"s schools.

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