Appeal of F.M., on behalf of his son, F.M., from action of Joel Klein, as Chancellor of the New York City Department of Education regarding student discipline.

Decision No. 16,321

(December 5, 2011)

Queens Legal Services, attorneys for petitioner, Tara Foster, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the decision of Joel Klein, Chancellor of the New York City Department of Education[1] (“respondent”) to suspend his son.  The appeal must be dismissed.

During the 2009-2010 school year, petitioner’s twelve-year-old son, F.M., attended respondent’s Intermediate School 125 (“I.S. 125” or “the school”).  On December 3, 2009, F.M. had a verbal exchange with two other I.S. 125 students wherein he was accused of saying “that he placed bombs in the school and that he was going to bomb the U.S.A.”  This alleged statement was relayed to a teacher who, in turn, notified the school’s assistant principal.  According to respondent, after speaking with F.M., bomb threat procedures were initiated.

By notice dated December 4, 2009 (“December 4 notice”), the chief executive officer in respondent’s Office of School and Youth Development (“CEO”) informed petitioner that F.M. was suspended, commencing December 7, 2009, for making the above statement.  In addition, the notice advised petitioner that a suspension hearing would be held on December 11, 2009, though this hearing was adjourned twice and did not occur until January 8, 2010.  By decision dated January 15, 2010, the CEO found that F.M. had made a bomb threat and “sustained” his suspension which, according to the decision, had run from December 7, 2009 to December 18, 2009.[2]   Petitioner appealed to respondent who, by decision dated May 4, 2010, sustained F.M.’s suspension, but modified the CEO’s decision by providing that the suspension “be expunged when [F.M.] reaches the terminal grade of his current school.”  This appeal ensued.

Petitioner contends that F.M., who is Muslim, was approached by two boys on December 3, 2009 who, among other things, teased him by saying “if you’re Muslim that means you’re a terrorist.”  According to petitioner, F.M. responded to this by saying that “[i]f I was a terrorist wouldn’t there be bombs in the school?”  Petitioner argues that, therefore, F.M. did not make a bomb threat and also that the suspension imposed was disproportionate to the incident.  In addition, petitioner contends that respondent violated a number of its own regulations in this matter, and argues that respondent’s December 4 notice was untimely and defective.  Petitioner requests that I annul F.M.’s suspension, expunge all references to it from his permanent record, direct respondent to comply with its regulations, and grant him costs, disbursements and fees.

Respondent contends that there is competent and substantial evidence to sustain the charge that F.M. made a bomb threat and argues that the length of the suspension imposed was not disproportionate to the offense.  In addition, respondent admits that its personnel failed to comply with certain of its regulations, but argues that the violations constitute harmless error.  Respondent also denies that its December 4 notice was defective and argues that any error regarding its timeliness was harmless.    

As an initial matter, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).  Accordingly, to the extent that petitioner seeks costs, disbursements and fees, his appeal must be dismissed.

In addition, 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  This appeal was brought after F.M. had served his suspension and was already moot except to the extent that petitioner sought expungement of the suspension from F.M.’s record (seee.g.Appeal of C.M., 50 Ed Dept Rep, Decision No. 16,142).  With respect to expungement, in response to a directive pursuant to §276.5 of the Commissioner’s regulations, respondent submitted an affidavit indicating that F.M. completed the terminal grade in I.S. 125, and that his suspension has been expunged from his school records.  Accordingly, the appeal is dismissed as moot.

Although I must dismiss this appeal, I am compelled to comment on the record in this case.  It appears that respondent did not fully comply with the requirements of the Chancellor’s regulations in this matter, including regulation A-663 with respect to the translation of the notice of suspension into the native language of the parents or the provision of translation services at the suspension hearing.  While respondent asserts that this was harmless error on these facts, I admonish respondent to comply with the applicable requirements of the Chancellor’s regulations in future suspensions. 

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

THE APPEAL IS DISMISSED.

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