Appeal of M.J., on behalf of his son A.J., from action of the Board of Education of the City School District of the City of Tonawanda regarding student discipline.

Decision No. 17,292

(December 20, 2017)

Benjamin L. Nelson, Esq., attorney for petitioner

Greco Trapp, PLLC, attorneys for respondent, Chris G. Trapp, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Tonawanda (“respondent”) to suspend his son (the “student”) from school.  The appeal must be dismissed.

During the 2015-2016 school year, the student attended respondent’s high school.  On September 4, 2015, the student attended a soccer game on school grounds.  At the game, the student showed several students a pocket knife which he had in his possession.  A police officer eventually arrived, and the student surrendered the pocket knife to the police officer.  The police officer subsequently issued the student an appearance ticket for the Tonawanda Youth Court.

By letter dated September 8, 2015, the middle/high school principal notified petitioner that the student was being suspended, effective immediately, for five days for possession of a weapon on school grounds.  The principal stated in the letter that she had determined that the student’s presence in school constituted a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  The student was also prohibited from participating in extracurricular school activities for 10 weeks.

By letter dated September 8, 2015, respondent’s superintendent informed petitioner that a superintendent’s hearing would be convened.  This letter charged the student with possession of a weapon on school grounds on September 4, 2015 and indicated that the superintendent had appointed a hearing officer to preside over the hearing.

The superintendent’s hearing was convened as scheduled.  In a written recommendation dated September 14, 2015, the hearing officer recommended that the student be found guilty of the charged conduct and that he be suspended for an additional two weeks.  The superintendent adopted the hearing officer’s recommendations regarding guilt and penalty in a letter dated September 14, 2015.  Petitioner appealed this determination to respondent.  In a letter dated October 15, 2015, respondent’s president affirmed the superintendent’s determination.  This letter also included, as an attachment, a “report” from the school district’s attorney which “outlin[ed] the District’s decision with regards to the appeal of [the student’s] Superintendent Hearing.”  The letter further indicated that respondent would immediately cease enforcement of the 10-week exclusion from extracurricular activities imposed on September 8, 2015 as this penalty had not been considered or addressed by the hearing officer or the superintendent.  This appeal ensued.

Petitioner admits that the student possessed a pocket knife while on school grounds, but contends that respondent’s code of conduct incorporates the definitions outlined in the Penal Law and that the knife was not a “weapon” within the meaning of the Penal Law.  Petitioner requests that I reverse respondent’s decision and expunge the suspension from the student’s record.

Respondent maintains that the appeal is moot because the student has served his suspension and that it does not maintain any information regarding the disciplinary incident in the student’s permanent record.  Respondent further asserts that the student was guilty of possessing a weapon as defined in its code of conduct on school grounds, and that its code of conduct does not strictly require that a weapon satisfy the definition of a weapon in the Penal Law.

First, I must address a procedural matter.  Petitioner requests permission to submit a reply memorandum of law, to which respondent objects.  Reply memoranda of law may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4; Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053; Appeal of Gorsky, 47 id. 162, Decision No. 15,658).  Here, petitioner did not request prior permission to submit this document.  Therefore, I decline to accept the reply memorandum of law.  Consequently, it is unnecessary to consider respondent’s request to submit a sur-reply to the reply memorandum of law. 

Respondent contends that 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).  Here, the student has served his suspension.  Therefore, any claim regarding the suspension and appropriateness of the penalty is moot (see e.g. Appeal of Kainz, 38 Ed Dept Rep 339, Decision No. 14,049).

Respondent further contends that petitioner’s request for expungement must be dismissed as moot because it does not, and will not, maintain any record of this suspension in the student’s “permanent educational record.”  Respondent admits that it will maintain such information in an “internal disciplinary file” because it “is legally obligated to supply information to the State with respect to instances involving weapons,” but asserts that it does not include any “identifying features” when transmitting such information.  Therefore, according to respondent, the student’s permanent record contains no reference to the disciplinary incident which is the subject of this appeal, and any release of information concerning the incident would not include any personally identifying information.  Therefore, I agree with respondent that petitioner’s request for expungement is academic under the circumstances and must be dismissed as moot.

In any event, even if the appeal were not subject to dismissal as moot, it would be dismissed on the merits.  The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

As noted above, petitioner’s son admitted at the superintendent’s hearing that, on September 4, 2015, he possessed a pocket knife on school grounds.  The hearing officer determined that this was a Level 3 offense, which is defined by the district’s code of conduct as “[t]he possession of a weapon, device or substance which will or is designed to inflict physical harm.”

Petitioner nevertheless contends that the student cannot be punished for such conduct because respondent’s code of conduct incorporates the definition of weapon contained in the Penal Law, and that the pocket knife did not constitute a “weapon” under such definition.  Respondent’s code of conduct defines “weapon” as follows:

[A] firearm as defined in 18 USC Section 921 for purposes of the Gun-Free Schools Act.  It also means any other device, instrument, material or substance that can cause physical injury or death when used to cause physical injury or death.  The Penal Code of the State of New York shall be used to determine what is considered a weapon.  Penal Law Sections 265.01 -265.06.

While far from a model of clarity, I agree with respondent that the policy does not mandate that, within the context of student discipline, a weapon must satisfy the definition of a weapon contained in the Penal Law.  I reject petitioner’s hyper-technical argument that the charges must be dismissed based upon respondent’s failure to clearly identify this type of knife as a weapon in its code of conduct.  No reasonable person could assume that it is acceptable behavior for a student to bring a knife with a two-inch long blade on school grounds, particularly where respondent’s code of conduct references the Penal Law, which lists various types of knives as weapons, and defines a Level 3 offense s “[t]he possession of a weapon, device or substance which will or is designed to inflict physical harm” (see e.g. Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,168).  I therefore find that the knife at issue was a prohibited weapon under respondent’s code of conduct.

However, I agree with petitioner insofar as the specific language used in the sentence concerning the Penal Law – i.e., “The Penal Code of the State of New York shall be used to determine what is considered a weapon” (emphasis added) – may cause confusion to parents and students.  Therefore, I encourage respondent to clarify the scope and/or intent of its definition of weapon.

On this record, I find no error in respondent’s determination that the student’s possession of a knife on school grounds violated its code of conduct.  Nor do I find any error with its determination to impose discipline in connection therewith (see Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,168).

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

THE APPEAL IS DISMISSED.

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