Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the North Babylon Union Free School District regarding student discipline.

Decision No. 15,991

(September 30, 2009)

Michael G. O’Neill, Esq., attorney for petitioner, Corey Stark, Esq., of counsel

Guercio & Guercio, Esqs., attorneys for respondent, Douglas A. Spencer, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the North Babylon Union Free School District (“respondent”) suspending his son from school.  The appeal must be dismissed without prejudice.

On February 18, 2005, petitioner’s son, a student at the North Babylon High School, was discovered in possession of a knife and was suspended from school.  A superintendent’s hearing was held pursuant to Education Law §3214 and the student was found guilty of possession of a dangerous instrument.  Thereafter, the committee on special education (“CSE”) determined that the conduct for which the student was found guilty was not a manifestation of the student’s disability.  Accordingly, the superintendent’s hearing was reconvened to determine the penalty and the superintendent ultimately extended the suspension for an additional month.  Petitioner appealed this decision to respondent which upheld the suspension.  This appealed ensued.

Petitioner asserts that the discovery of the knife was the result of an impermissible search conducted in violation of the Fourth Amendment of the United States Constitution and respondent’s code of conduct, which incorporates the constitutional reasonable suspicion standard for searches by school officials.  He, therefore, seeks expungement of the suspension from his son’s school record.  Respondent contends that the appeal is moot.  Respondent also maintains that petitioner has not established a clear legal right to the relief sought, contending that the search was proper in all respects and also that the student conceded the conduct charged.

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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  The student’s suspension ended and he returned to school prior to the initiation of this appeal.  However, petitioner seeks expungement of his son’s record.  Therefore, the appeal is not moot.

Subsequent to initiating this appeal, petitioner commenced an action in the United States District Court, Eastern District of New York, against respondent and several school district employees seeking a determination that they violated his son’s constitutional rights under the Fourth Amendment of the United States Constitution and requesting compensatory and punitive damages (Sullivan v. North Babylon Union Free School Dist., et. al., US Dist Ct, EDNY, 08 Civ 672).  That action is currently pending.

Although petitioner’s pending federal court action includes additional respondents and seeks relief in the form of damages, rather than expungement of his son’s records as herein, the fundamental claim underlying this appeal and the federal action is the same:  whether the search at issue violated the student’s rights under the Fourth Amendment of the United States Constitution.  Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide an issue that a petitioner has elected to raise in Federal District Court, particularly when that issue is a matter of Federal Constitutional law (seeAppeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451).  I, therefore, decline to entertain jurisdiction at this time.  Consequently, the appeal is dismissed without prejudice to the commencement of a new appeal within thirty days of the final disposition of the pending federal action if any additional relief is necessary in light of such disposition.

THE APPEAL IS DISMISSED WITHOUT PREJUDICE.

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