Appeal of M.W. and K.W., on behalf of their son D.W., from action of the Board of Education of the Letchworth Central School District regarding an athletic suspension.

Decision No. 16,903

(April 26, 2016)

Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Letchworth Central School District (“respondent”) to suspend their son, D.W., from interscholastic athletics.  The appeal must be dismissed.

During the 2013-2014 school year, D.W. was a junior at respondent’s high school and a captain of the wrestling team.  According to respondent’s principal, on January 29, 2014, he received information that the day before, D.W. was smoking electronic cigarettes (“e-cigarettes”) on the school bus to a wrestling match.  That same day, a biology teacher reported to the principal that he found another student blowing “smoke” from an e-cigarette at D.W. in the bathroom.  When the e-cigarette was not found in the other student’s person, the biology teacher suggested that the student gave the e-cigarette to D.W. because D.W. left the bathroom quickly.

The principal questioned D.W., who admitted that he “shared” the e-cigarette with the other student.  He admitted to smoking it on the bus the day before and gave the principal two e-cigarettes, a charger and a bottle of liquid nicotine solution.  However, D.W. denied smoking in the bathroom.

On January 29, 2014, the principal contacted D.W.’s parents and explained that possession of e-cigarettes and nicotine solution are a violation of both the district’s Code of Conduct and the Player Regulations and Training Rules.  He informed petitioners that D.W. would be required to serve one day of in-school suspension, suspension from four wrestling matches and required to undergo drug screening.  Petitioners appealed the athletic suspension to the superintendent who upheld the suspension.  This appeal ensued.

Petitioners appear to argue that the district’s policy on e-cigarettes is not clear, that the policy treats athletes and non-athletes differently and that other students have received less severe punishment for similar conduct.  As relief, petitioners request interim relief permitting D.W. to compete in wrestling pending a decision on the merits of this appeal, and a “stay of the suspension.”[1]

Respondent contends that the appeal must be dismissed as moot.  Respondent further contends that even if the appeal were not dismissed on procedural grounds, it should be dismissed for petitioners’ failure to meet their burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief.

Respondent objects to petitioners’ submission of a document entitled “Attorney’s Reply Affidavit,” which appears to have been submitted in response to respondent’s opposition to petitioners’ request for interim relief.  This type of response is not a pleading included in §275.3 of the Commissioner's regulations.  However, I note that the affidavits submitted in opposition to petitioners' request for interim relief were incorporated by reference in paragraph 22 of respondent's answer.  In the absence of any demonstrable prejudice to respondent, I will permit petitioners' submission as in the nature of a reply to respondent's answer (Appeal of R.L., 55 Ed Dept Rep, Decision No. 16,868; Appeal of K. AND J. G., 52 id., Decision No. 16,433).

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed petitioner’s reply documents, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 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).  The only relief requested by petitioners is that D.W. be permitted “to compete in wrestling pending a decision on the merits of this appeal” and a stay of D.W.’s suspension.  However, in their reply, petitioners indicated that their request for interim relief “is now moot, and is withdrawn.”  As a result, no decision was rendered regarding such request.  The record indicates that D.W. has served both the in-school and athletic suspensions and petitioners did not request expungement of his record.  Therefore, no further meaningful relief can be granted and the appeal must be dismissed as moot (Appeal of S.V., 55 Ed Dept Rep, Decision No. 16,829; Appeal of a Student with a Disability, 53 id., Decision No. 16,561).

Even if the appeal were not dismissed as moot, it would be dismissed on the merits.  In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  On the record before me, I find that petitioners have failed to establish any abuse of discretion in this matter.  Petitioners’ contention that parents must be notified before a student is questioned by school staff is without merit.  Petitioners do not allege a violation of any specific constitutional provision, nor do they cite to any case law holding that parental notification is required.  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 D.H., 47 Ed Dept Rep 77, Decision No. 15,631;  Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).  Moreover, petitioners were provided an opportunity to meet with the principal and superintendent prior to the imposition of the in-school and athletic suspensions.  Respondent imposed the discipline only after considering D.W.’s admissions and statements from witnesses to the incident.  Accordingly, I find that petitioners’ son was afforded the appropriate level of due process prior to the suspensions.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).  On this record I do not find the in-school and athletic suspensions imposed upon petitioners’ son excessive.

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

THE APPEAL IS DISMISSED.

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