Appeal of A.R., on behalf of her son J.N., from action of the Chancellor of the New York City Department of Education regarding student discipline.

Decision No. 17,120

(July 12, 2017)

Legal Services NYC-Bronx, attorneys for petitioner, Nanette Schorr, Esq., of counsel

Zachary Carter, Corporation Counsel, attorney for respondent, Thomas Crane, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the decision of the Chancellor[1] of the New York City Department of Education (“respondent”) to suspend her son.  The appeal must be dismissed.

During the 2011-2012 school year, J.N. was a 14-year-old 8th-grade student attending respondent’s MS 289 (“school”).  On the morning of November 15, 2011, J.N. and another student, L.T., were in the lunchroom.  At that time  a third student, K.J., apparently suffered a cut on his arm that required medical attention.  School officials investigated the matter and, while the statements of witnesses differed, it was determined that there was some kind of horseplay between J.N. and K.J. in which J.N. cut K.J.’s arm with a sharp object, reported to be a knife.  Although no knife was found, J.N. was arrested. 

By letter dated November 16, 2011, the Chief Executive Officer in respondent’s Office of School and Youth Development (“CEO”) notified petitioner that J.N. was suspended, effective November 17, 2011.  Petitioner’s son was charged with engaging in behavior which resulted in injury by stabbing K.J. on his arm with a pocket knife and possession of a dangerous weapon, a pocket knife. 

A suspension hearing was held at which three witnesses testified, including K.J.  Written statements and other documentation were also entered into evidence.  At the hearing the charges were modified.  In her decision, dated December 1, 2011, the CEO sustained the modified charges.  Specifically, J.N. was found to have engaged in behavior which resulted in injury by stabbing K.J. on his arm with a “sharp object” and being in possession of a dangerous weapon, a “sharp object capable of causing injury.”  The decision stated that K.J.’s testimony was “concise and compelling,” “albeit reluctantly” given.  In essence, K.J.’s testimony stated that J.N. and he were “play-fighting,” and that J.N. took out an object and cut his arm.  Additionally, K.J. stated that his injury was not caused by a fall on to another object, such as a table.  The decision indicated that the hearing officer gave greater weight to the sworn testimony, which was very similar, over the unsworn written statements provided.  As a result, petitioner’s son was suspended for one year with the right to petition for early reinstatement.  The decision also indicated that the suspension would be expunged from J.N.’s school records “upon graduation or permanent departure from the New York City Public School System.” 

Petitioner appealed to respondent’s Chancellor who sustained the CEO’s determination by decision dated March 1, 2012.  This appeal ensued.

Petitioner seeks to have the suspension reversed and expunged from J.N.’s records. Petitioner contends that respondent’s decision was not supported by “substantial and competent evidence.”  Alternatively, petitioner asserts that, in this instance, the substantial and competent evidence standard violates her son’s constitutional interests.  Petitioner also argues that the modification of the charges against her son at the hearing was improper, that objections made at the hearing by her attorney were improperly overruled and that J.N.’s suspension was excessive. 

Respondent argues that the charges against J.N. were sustained by substantial and competent evidence and that such standard of evidence is not unconstitutional.  Respondent asserts that the charges provided to petitioner prior to the hearing afforded J.N. sufficient notice and were not improperly modified following the hearing.  Respondent further contends that the rulings on petitioner’s attorney’s objections were proper.  Finally, respondent asserts that the suspension imposed was not excessive and was in compliance with Chancellor’s Regulations.

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).  Shortly after the appeal was commenced the school year ended and J.N. had served his suspension, rendering that part of the appeal academic.  Petitioner’s request for expungement is also moot.  According to an affirmation submitted by respondent’s counsel, pursuant to 8 NYCRR §276.5(a), on or about October 28, 2014, J.N. was “discharged from the New York City public school system to a school outside New York City.”  Respondent’s counsel affirmed that, because of J.N.’s discharge, the record of suspension was expunged from his records.  Therefore, since the expungement has already taken place, the appeal is moot. 

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

THE APPEAL IS DISMISSED.

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