Appeal of D.H., on behalf of her daughter L.J., from action of the Board of Education of the Sewanhaka Central High School District regarding student discipline.

Decision No. 15,631

(August 13, 2007)

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the suspension of her daughter, L.J., by the Board of Education of the Sewanhaka Central High School District ("respondent").  The appeal must be dismissed.

L.J. was suspended from school as a result of an incident that occurred on December 5, 2006.  A superintendent's hearing was held on December 12, 2006. On January 3, 2007, the hearing officer sustained the charges against L.J. and recommended that her suspension be continued through January 26, 2007.  By letter dated January 4, 2007, respondent's interim superintendent of schools upheld the suspension.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 21, 2007.

Petitioner alleges that the hearing transcript does not support the charges against L.J.  Petitioner also claims that school officials coerced L.J. to prepare a written statement.  Petitioner requests that I conduct an independent hearing and overturn L.J.'s suspension.  Petitioner also requests that I direct respondent to provide “plans of correction” requiring that parents be notified before school staff may question a student and to provide medical attention to students assaulted on school property.

Respondent denies petitioner's allegations and contends that L.J.’s suspension was in all respects proper.  Respondent also contends that the appeal must be dismissed for failure to exhaust administrative remedies.

Initially, I must address petitioner’s reply.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]). Respondent served its answer on March 16, 2007, and petitioner served her reply on April 12, 2007.  Accordingly, I find petitioner’s reply to be untimely (Appeal of Students with a Disability, 46 Ed Dept Rep ___, Decision No. 15,440).   Moreover, §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioner’s reply was not verified in violation of §275.5 (Appeal of a Student with a Disability, 46 Ed Dept Rep ___, Decision No. 15,454). Therefore, I have not considered petitioner’s reply. 

     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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Petitioner does not request expungement of L.J.’s records.  Since L.J. has served the suspension, no further meaningful relief can be granted and the appeal must be dismissed as moot (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of K.G.B., 44 id. 332, Decision No. 15,189; Appeal of R.S. and R.S., 44 id. 181, Decision No. 15,141).

The appeal must also be dismissed because petitioner failed to exhaust her administrative remedies. Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination.  Accordingly, the decision of a superintendent to suspend a student in excess of five school days following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of D.C., 41 id. 190, Decision No. 14,661; Appeal of P.R. and C.R., 41 id. 48, Decision No. 14,611).  Petitioner did not appeal the interim superintendent's decision to respondent.  Therefore, the appeal must also be dismissed for failure to exhaust administrative remedies.

     Petitioner’s contention that parents must be notified before a student is questioned by school staff is without merit.  Neither the provisions of the Education Law nor constitutional due process considerations require that a parent be present when a student is questioned by school personnel about possible infractions of school rules (Appeal of M.F. and J.F., 43 Ed Dept Rep 174, Decision No. 14,960; Appeal of Lago, 38 id. 723, Decision No. 14,126).

     Petitioner’s request for a “plan of correction” regarding the provision of medical attention to students is also without merit.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  I find no evidence in the record that L.J. sustained an injury warranting medical attention.

While the appeal is dismissed, there is one other matter that warrants comment.  Education Law §3214(3)(c) mandates that a suspension may not continue beyond five school days unless and until the student has been afforded an opportunity for a hearing and a determination adverse to the interests of that student has been made (Ross v. Disare, 500 F.Supp. 928 [S.D.N.Y 1977]; MacDonald v. Tompkins, 67 Misc.2d 338 [Sup.Ct. Onondaga Co. 1971]; Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419)  Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing is held and a decision rendered thereon within the initial five-day suspension period, unless an adjournment is requested by the student or parent (Appeal of McMahon, et al., 38 Ed Dept Rep 22, Decision No. 13,976).  In this case, the interim superintendent did not issue his decision until January 4, 2007, well beyond the fifth day of L.J.’s suspension.  There is nothing in the record that indicates petitioner requested any adjournment(s).  Therefore, respondent was obligated to readmit L.J. to school after the expiration of the initial five-day suspension and allow her to continue in attendance until January 4, 2007.  Respondent is reminded of its obligation to comply in the future with the time limitations specified in Education Law §3214.

THE APPEAL IS DISMISSED.

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