Appeal of C.M., on behalf of her son E.M., from action of the Board of Education of the Hudson Falls Central School District regarding student discipline.

Decision No. 16,142

(August 30, 2010)

Kara Mackey Dopman, Esq., attorney for petitioner

Bartlett, Pontiff, Stewart, & Rhodes, P.C., attorneys for respondent, Karla Williams Buettner, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hudson Falls Central School District (“respondent”) to suspend her son, E.M.  The appeal must be sustained in part.

On June 6, 2008, a student observed E.M., a high school student, and another student engaging in sexual contact in the boys’ bathroom.  The high school principal contacted petitioner and met with her and E.M. that day to investigate the matter.  After speaking to petitioner and E.M. together, the principal spoke to E.M. privately with petitioner’s consent, at which time E.M. admitted to sexual contact with the other student.

By letter dated June 9, 2008, the principal informed petitioner that he was suspending E.M. for five days because his sexual contact with another student violated Rule 1 of the High School Basic Code of Conduct (“code of conduct”), which requires students to respect the person, property and rights of themselves and others.

Petitioner appealed this decision to respondent.  By decision dated September 14, 2009, respondent upheld the suspension imposed by the principal.  However, the decision acknowledged that the location of the incident listed on E.M.’s computerized referral form was incorrect and directed the superintendent to correct this form.  This appeal ensued.

Petitioner contends that E.M.’s five-day suspension was harsh, excessive and disproportionate to the severity of the offense and unwarranted given the fact that E.M. had no prior disciplinary history.  Petitioner also maintains that E.M. had no notice that his conduct was prohibited by the code of conduct and that it could result in a suspension and contends that the location of the incident was inaccurately reported on E.M.’s computerized referral form.  Petitioner further complains that E.M.’s due process rights were violated because the suspension notice was inadequate, neither she nor her attorney were permitted to question the complaining witness and the district failed to comply in a timely manner with her repeated requests for records related to this incident.

In addition, petitioner asserts that the alternative instruction provided to E.M. was inadequate and, therefore, he was denied a free appropriate public education during his suspension.  She further maintains that removing E.M. from his regular classroom setting during final examination week was the equivalent of the imposition of additional discipline and, therefore, E.M. should have been given the right to a superintendent’s hearing.  Finally, petitioner claims that the incident was incorrectly reported in the Violent and Disruptive Incident Reporting (“VADIR”) System’s “other sexual offenses” incident category.  Petitioner seeks reversal of respondent’s decision and expungement of all references to the incident and resulting suspension from E.M.’s records and all VADIR records.

Respondent contends that the five-day suspension was reasonable and that it provided adequate alternative instruction to E.M.  Respondent further contends that petitioner has waived her claims of inadequate notice and lack of opportunity to question the complaining witness, as well as her other due process claims, because she did not raise them in her appeal to respondent.  In addition, respondent maintains that it properly reported the incident on the VADIR individual incident and summary forms.

Initially, I must address petitioner’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Thus, I have not considered petitioner’s memorandum of law to the extent it adds belated assertions that are not part of the pleadings.

To the extent that petitioner raises issues of inadequate notice, the lack of opportunity to question the complaining witness and other due process violations, the appeal must be dismissed.  The record shows that petitioner’s appeal to respondent was limited to the length of E.M.’s suspension, the allegedly inappropriate reporting of the incident in VADIR’s “other sexual offenses” incident category and the inaccurate reporting of the location of the incident in E.M.’s computerized student referral form.  Because the due process issues were not raised or adjudicated below, they may not be raised in an appeal before the Commissioner under Education Law §310 (Appeal of K.H., 49 Ed Dept Rep 210, Decision No. 16,004; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451; Appeal of D.V., 44 id. 263, Decision No. 15,168).

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).  Thus, the appeal must be dismissed as moot to the extent it seeks to vacate the suspension because it has already been served.  Similarly, the appeal is also moot to the extent that petitioner requests relief on her claim that respondent has failed to provide E.M. with adequate alternative education during the suspension period (Appeal of D.C., 41 Ed Dept Rep 277, Decision No. 14,684; Appeal of Harlan, 40 id. 309, Decision No. 14,488; Appeal of Camille S., 39 id. 574, Decision No. 14,316).  Petitioner’s claim that the location of the incident listed in E.M.’s computerized student referral form is inaccurate must also be dismissed as moot because respondent has already directed the superintendent to amend this form to list the correct location.  The appeal is not moot, however, insofar as petitioner seeks expungement from E.M.’s records and all VADIR records.

Pursuant to §100.2(gg)(1)(vi)(b)(2) of the Commissioner’s regulations, an incident in the category of “other sex offenses” involves:

inappropriate sexual contact but no forcible compulsion, including, but not limited to, conduct that may be consensual or involve a child who is incapable of consent by reason of disability or because he or she is under 17 years of age, provided that such term shall not include consensual sexual conduct involving only students, and/or non-students 18 years or under, unless at least one of the individuals participating in the conduct is at least four years older than the youngest individual participating in the conduct.

Thus, this incident should not have been reported in the VADIR “other sex offenses” incident category because, according to the record, E.M. and the other student involved were engaging in consensual sexual contact and they were less than four years apart in age at the time.  However, the incident should have been reported in VADIR’s “other disruptive incidents” category.  Section 100.2(gg)(1)(vi)(t) of the Commissioner’s regulations defines “other disruptive incidents” as “other incidents involving disruption of the educational process.”  A disruptive incident is only reportable under VADIR, where as here, it involves behavior, which under the district’s code of conduct, is of sufficient seriousness to warrant, interalia, the suspension of a student (8 NYCRR §100.2[gg][2][ii]).  Thus, respondent is directed to amend the VADIR individual incident form for this incident and its 2007-2008 VADIR Summary Form by changing the incident category for this incident to the “other disruptive incidents” category.  Respondent is advised to contact the State Education Department’s Office of Student Support Services to obtain information regarding the procedures for amending the summary form.

With respect to petitioner’s claim for expungement of the incident from E.M.’s records, the pleadings and exhibits establish that a student observed E.M. and another student touching each other’s genitals in a sexual manner in a school bathroom.  E.M. admitted to this conduct.  Such conduct on school property is grossly inappropriate and unacceptable, regardless of whether it was consensual as petitioner alleges.  Accordingly, I find no basis to order the expungement of E.M.’s records.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the board amend the VADIR individual incident form for this incident and the district’s 2007-2008 VADIR Summary Form by changing the incident category for this incident to the “other disruptive incidents” category in accordance with this decision.

END OF FILE.