Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Central Square Central School District regarding student discipline.

Decision No. 17,203

(October 3, 2017)

Legal Services of Central New York, attorneys for petitioner, Julie B. Morse, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Heather M. Cole, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Central Square Central School District (“board” or “respondent”) upholding the suspension of his son, a student with a disability (“the student”).  The appeal must be dismissed.

During the 2012-13 school year, the student attended second grade in respondent’s elementary school.  The student was suspended from school as a result of an incident that occurred on April 10, 2013 that involved sexual behavior with a female student.  Because of the sexual nature of the conduct involved, when respondent learned of the incident, it contacted the appropriate county agencies who in turn involved the police.  Respondent’s principal, upon consulting with the district’s superintendent and assistant superintendent, suspended the student for five days from April 12 through April 18, 2013, as memorialized in a letter to petitioner dated April 11, 2013.  The student was charged with indecent exposure, inappropriate touching, endangering the health and safety of others, disorderly conduct, and disruption to the educational process. 

A superintendent’s hearing was held on May 3 and May 15, 2013 to consider the imposition of an additional penalty upon the student.  Following the hearing, the superintendent adopted the hearing officer’s recommendation to suspend the student from April 12, 2013 through the end of the 2012-2013 school year, as well as for the first marking period of the 2013-2014 school year.  The superintendent further adopted the hearing officer’s recommendation that the student could return to school in September 2013 if petitioner produced evidence that the student was attending counseling.  Petitioner appealed that decision to respondent board on June 3, 2013.  On June 5, 2013, the board rendered its determination on petitioner’s appeal, and decided that, while there was competent and substantial evidence in the record to support the finding of the student’s guilt, the superintendent’s recommended penalty was excessive.  Therefore, the board returned the matter to the superintendent “to decide on another penalty, based on the existing record.”  The superintendent thereafter modified the penalty on June 5, 2013, to suspend the student only for the remainder of the 2012-2013 school year.  Petitioner did not appeal the modified suspension to the board.  

Petitioner alleges that the five-day suspension should be expunged from the student’s record because the letter notifying petitioner of the five-day suspension did not inform petitioner of his right to an informal conference, and the suspension commenced without an informal conference or any finding that the student posed a continuing danger to persons or property or an ongoing threat of disruption.  Petitioner further alleges that the modified penalty imposed by the superintendent, suspension for the remainder of the 2012-2013 school year, is so excessive that it was arbitrary and capricious and without any rational or reasonable basis and should therefore be voided and expunged from the student’s record.

Respondent alleges that it has expunged the five-day suspension from the student’s record and, therefore, petitioner’s claims relating to the five-day suspension must be dismissed as moot.  Respondent denies petitioner’s allegations and contends that the student’s suspension was supported by competent and substantial evidence in the record, was not arbitrary or capricious, and that the suspension for the remainder of the 2012-2013 school year was proportionate to the severity of the conduct involved. 

Petitioner’s appeal with respect to the five-day suspension 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).  Though the student has served his suspension, to the extent petitioner seeks expungement of the suspensions from his son’s record, the appeal will not be dismissed as moot on that basis (see, e.g. Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,836).  However, it appears from the record that respondent has already expunged the student’s record of the five-day suspension.  Therefore, petitioner’s claims relating to respondent’s alleged procedural violations in imposing the five-day suspension must be dismissed as moot (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,949).

Petitioner’s challenge to the penalty of suspension of the student for the remainder of the 2012-2013 school year must be dismissed because petitioner failed to exhaust his administrative remedies.  In the case of a suspension in excess of five days, Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination.  Accordingly, the decision of a superintendent to suspend a student following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner (Appeal of R.A., 48 Ed Dept Rep 426, Decision No. 15,903; Appeal of D.H., 47 id. 77, Decision No. 15,631).  As noted above, petitioner did not appeal to the board from the superintendent’s determination modifying the penalty, rather, he appealed the superintendent’s imposition of a modified penalty directly to the Commissioner.  Therefore, the appeal must be dismissed for failure to exhaust administrative remedies.

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

THE APPEAL IS DISMISSED.

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