Appeal of a STUDENT WITH a DISABILITY,[1] by his parent, from action of the Board of Education of the Lindenhurst Union Free School District regarding student discipline.

Decision No. 17,224

(October 19, 2017)

Raiser & Kenniff, attorneys for petitioner, Anthony P. Delluniversita, Esq., of counsel

Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Lindenhurst Union Free School District (“respondent”) to impose discipline on her son (“the student”).  The appeal must be dismissed.

During the 2011-2012 school year, the student attended eleventh grade in respondent’s district.  On November 2, a security consultant employed by the district (“consultant”) found the student and a friend in a bathroom stall with the stall door closed.  The consultant ordered the students to exit the stall.  The consultant asked the students what they were doing to which the students replied that “they were just talking.”  The consultant then brought both students to the assistant principal’s office where the students were separated.  While the record is not entirely clear, it appears that the consultant and respondent’s dean of discipline (“dean”) found that the friend had a plastic baggy in his pocket which contained “ground-up pills.”  The friend stated that the substance was Percocet, a narcotic, which had been given to him by the student.  The record is not entirely clear, but it appears that the consultant, the dean and the assistant principal confronted the student with the friend’s statement and told the student that the police would be contacted.  The student then removed from his underwear a “black satchel” containing ten pills (five Vicodin and five “Tylenol 3”).  The student subsequently admitted that he had given the Percocet to the other student.  The police were notified and the student was arrested.    

By letter dated November 2, respondent’s high school principal notified petitioner that the student was suspended for five days for “possession of a controlled substance.”  The letter advised petitioner of the right to an informal conference.  The student returned to school on November 10.  In a letter dated November 16, petitioner was notified that a superintendent’s hearing would be held on November 23.  Subsequently, the superintendent’s hearing was rescheduled and held on December 1.

During the superintendent’s hearing, the student admitted to possessing controlled substances, some of which had been prescribed to petitioner which the student had taken without her knowledge.  The superintendent found the student guilty of the charged misconduct.  Thereafter, a manifestation determination review was held and it was found that the student’s conduct was not a manifestation of his disability.  The superintendent subsequently imposed an out-of-school suspension for the remainder of the school year. Petitioner appealed the superintendent’s decision to respondent.  By letter dated January 6, 2012, respondent’s president informed petitioner that respondent had denied petitioner’s appeal and upheld the superintendent’s determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 8, 2012.

Petitioner alleges that the student has “legitimate physical pain that requires the use of pain management,” and claims that the penalty was excessive under the circumstances.  Petitioner acknowledges the student’s guilt, but notes that the criminal charges against the student were resolved with a non-criminal disposition, and that the student’s friend received a more lenient sentence.  Petitioner seeks a reduction of suspension to five days.

Respondent denies petitioner’s assertions and argues that the appeal should be dismissed as untimely. 

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).  Petitioner’s request for interim relief was denied and the student’s suspension concluded at the end of the 2011-2012 school year.  Further, petitioner does not seek expungement of the student's record.  Accordingly, petitioner’s claims regarding the student’s suspension are moot (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375).

The appeal must also be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Here, the petition was served on respondent on May 24, 2012, more than 30 days after respondent’s determination dated January 6, 2012.  Petitioner does not set forth good cause, or any cause, for the delay in her petition as required by 8 NYCRR §275.16.  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not subject to dismissal as moot and untimely, it would be dismissed on the merits.  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).  Given the admissions by the student and petitioner’s own testimony at the hearing that the Vicodin pills were hers and that she did not know that the student took them, I cannot conclude that a penalty of suspension for seven months was disproportionate to the conduct or so excessive as to warrant substitution of my judgment (see e.g. Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159 [one-year suspension for possession of cocaine upheld]; Appeal of P.W., 50 id., Decision No. 16,119 [one-year suspension for possession of marijuana upheld]; Appeal of J.C., 46 id. 562, Decision No. 15,596 [eight-month suspension for possession of marijuana upheld]).

Additionally, although petitioner argues that the friend received a more lenient penalty, the fact that other students involved in a disciplinary incident may have received different or lesser penalties, or no disciplinary measures at all, does not, in and of itself, provide a basis for nullifying the discipline imposed on the student provided that, as here, the record establishes that the student engaged in the misconduct and the penalty imposed is otherwise appropriate (Appeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046).

THE APPEAL IS DISMISSED.

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