Appeal of D.C., on behalf of his son K.C., from action of the Board of Education of the Bath Central School District regarding student discipline.

Decision No. 17,223

(October 19, 2017)

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, Amy J. Lucenti, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a decision of the Board of Education of the Bath Central School District (“respondent”) to impose discipline on his son, K.C. (“the student”).  The appeal must be dismissed.

The record reflects that, on October 2, 2012, a student within respondent’s district (the “victim”) reported to the dean of students that the student who is the subject of this appeal punched him in the face while they were riding on the bus.  Later that day, the dean of students met with the student, who admitted that he had punched the victim in a dispute over a bus seat.  The student subsequently met with the principal and again admitted that he had punched the victim.  The principal suspended the student for three days.  The principal also, in accordance with respondent’s athletic code, suspended the student from the football team for the remainder of the season.  This appeal ensued.

Petitioner raises various procedural and substantive objections to the student’s three-day out-of-school suspension.  Petitioner requests an investigation into respondent’s compliance with the Education Law and its policies; an order that respondent adopt new policies “approved by the state”; an order that respondent meet its legal obligations regarding student discipline; and expungement of all academic and athletic suspensions for students in respondent’s district “who[se] rights under [the] Education Law ... were violated.”  Also, petitioner specifically requests that his son’s athletic suspension be expunged and that he be awarded his pin and letter for his participation in football.

Respondent asserts that the petition is not properly verified and must be dismissed on that basis.  Respondent also contends that the appeal must be dismissed as moot because the student served the three-day suspension as well as the athletic suspension.  Respondent further states that it has expunged the student’s three-day suspension from his record.  Respondent additionally objects to the relief sought by petitioner as outside the scope of an appeal pursuant to Education Law §310.

I must address several procedural issues.  First, section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  In this appeal, the petition is dated January 18, 2013,[1] while the verification was sworn to on January 11, 2013.  Petitioner’s reply does not explain why the verification is dated prior to the date of the petition nor does it assert that the petition which was verified is identical to the petition submitted in this appeal.  Thus, it is impossible to determine on this record whether the petition which was verified is the same petition served in this appeal, or whether changes were made between January 11 and January 18.  Although petitioner was not represented by counsel, I decline to excuse this defect because petitioner has not cured this defect or otherwise addressed the discrepancy between the two dates.  Therefore, the appeal must be dismissed for improper verification (see Appeal of Unapanta, 57 Ed Dept Rep, Decision No. 17,166; Appeal of Stowell, 52 id., Decision No. 15,757).

Further, to the extent petitioner seeks an order directing respondent to expunge the suspensions of students other than his son, the appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Petitioner lacks standing to assert the rights of others, including the rights of students other than his own children (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of McCarthy, et al., 54 id., Decision No. 16,631; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).

Several aspects of petitioner’s appeal must also be dismissed for failure to state a claim upon which relief may be granted.  Among other things, petitioner seeks an order providing for state oversight of respondent’s various procedures for student discipline as well as an order requiring state approval of respondent’s policies.  However, Education Law §2801 merely requires that a board of education develop a code of conduct in collaboration with various local stakeholders; it does not require approval of such codes by the Commissioner or the State Education Department.  Similarly, Education Law §§1604(9), 1709(2), 2503(2) and 2554(13) assign the duty of adopting regulations relating to the maintenance of discipline in the schools to boards of education.  Those statutes, too, do not require the approval of the Commissioner or the State Education Department.  Petitioner makes conclusory allegations about respondent’s failure to comply with the Education Law but fails to establish a legal basis for imposing state oversight of respondent’s disciplinary policies or the implementation of such policies.  Therefore, these claims must be dismissed.

In addition, petitioner raises various allegations regarding the district’s noncompliance with the Education Law and requests an investigation into the district’s practices.  However, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). 

Moreover, to the extent petitioner requests declaratory relief as to the district’s compliance with the Education Law, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

The appeal must also be dismissed, in part, 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).  Here, respondent has expunged all reference to the three-day out-of-school suspension from the student’s record.  Although petitioner seeks determinations related to the manner in which the three-day suspension was imposed, no meaningful relief can be issued at this point and any review of respondent’s actions would be academic under these circumstances.  Therefore, petitioner’s challenge to the three-day suspension is dismissed as moot.

Although the appeal must be dismissed on procedural grounds, petitioner’s challenges to the student’s athletic suspension would also be dismissed on the merits.[2]  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).

Here, the record reflects that petitioner was afforded an opportunity to meet with the principal to discuss the underlying facts which supported the athletic suspension on October 2, the day of the incident and resulting suspension.  Further, petitioner later met with the principal, the director of athletics and the superintendent to discuss the athletic suspension.  Moreover, the record clearly establishes that the student was guilty of the misconduct which led to the athletic suspension.  Neither petitioner nor the student argued at any time that the student did not engage in the charged conduct; that the student’s conduct did not violate respondent’s athletic code; or that the district did not correctly apply the athletic code to the student’s circumstances.  Respondent’s training rules for the interscholastic athletic program (“training rules”), which govern athletic suspensions, provide, among other things, that disciplinary problems in and out of school may result in disciplinary action.  The training rules also provide for suspensions for the remainder of the athletic season as a penalty for a first offense of violating the training rules, which was the penalty imposed on the student.  Therefore, on this record I find that petitioner was afforded sufficient due process to satisfy the minimal due process required for an athletic suspension.

However, petitioner correctly argues that respondent did not strictly comply with all the procedures for athletic suspensions set forth in the training rules.  I admonish respondent to review its training rules and ensure that future athletic suspensions are conducted in accordance with the procedures it has adopted.[3]

I have considered the parties’ remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

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