Appeal of R.B., on behalf of his grandson T.B., from action of the Board of Education of the Wayland-Cohocton Central School District regarding student discipline.

Decision No. 17,394

(May 24, 2018)

Law Offices of Gialleonardo, Gizzo & Rayhill, attorneys for petitioner, Shannon R. Becker, Esq., of counsel

Osborn, Reed & Burke, LLP, attorneys for respondent, Jennifer M. Schwartzott, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Wayland-Cohocton Central School District to impose discipline on his grandson, T.B. (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student was a senior in respondent’s high school.  Previously, while in his junior year, the student had received and signed the district’s 2013-2014 Parent/Student Athletic Handbook (“handbook”) apparently when he had participated on the district’s baseball team in the spring of 2014.  The handbook sets forth the district’s “Grades 5-12 Extracurricular Activities Eligibility Policy” (“athletic policy”) stating the rules of student conduct and the penalties for violation of such rules.

According to the record, the student attended a music concert on August 1, 2014.  In connection therewith, the student rode on a limousine bus (“limo bus”) where alcohol was present.

A meeting was held on August 11 between the student, petitioner and his wife, counsel for petitioner, respondent’s athletic director, and the dean of students.  The athletic director displayed a photograph to the student and asked him if the student was portrayed in the photograph.  According to the record, the photograph shown to the student portrays him and others on the limo bus.  The student and several other individuals appear to be holding beer cans.  Counsel for petitioner directed the student not to answer, and the meeting concluded.

By letter dated August 21, 2014, respondent’s athletic director determined that the student had violated respondent’s athletic policy and imposed a 10-week athletic suspension.[1]  The athletic director noted that, if the student verified his attendance at a “3-hour ... workshop on alcohol/drug abuse,” his suspension could be “lessened by no more than half....”  The athletic director additionally noted that, if interested, the student could contact him or the dean of students “to obtain an appropriate referral for counseling.”

On or about September 1, petitioner emailed respondent’s president, informing him that staff had indicated that “if [the student] shows up for practice, send him home for the photo incident.”  The email also inquired whether “the Board is supporting suspending [the student] for that photo which was taken over the summer.”  Respondent’s president replied on September 2, indicating that the board was aware of the suspension, thanking petitioner for making sure that the board was aware of the situation, and stating that the policy is a year-round policy.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner contends that the athletic suspension imposed upon the student is improper because it is based upon a prior school year’s athletic policy in the 2013-2014 Parent/Student Athletic Handbook, which, he claims, did not include the summer because the student had not yet signed the 2014-2015 handbook.  Petitioner further contends that the athletic director failed to, as required by the handbook, consider the student’s individual circumstances in assessing a penalty.  Petitioner further complains that respondent did not provide him with the identity of the photographer who took the photograph which was displayed to the student on August 11.  In this respect, petitioner alleges that the photograph has been altered.  Petitioner also contends that the district treated another student who was disciplined for his involvement on the limo bus differently than the student, and that this disparate treatment occurred because petitioner had filed a previous appeal against respondent pursuant to Education Law §310.  As relief, petitioner requests “an [o]rder that the suspension is invalid” or, in the alternative, an order directing the district to provide the identity of the individual who took the photograph “as well as the identity(ies) [sic] of the individual(s) who altered it.”  Petitioner also requests that I admonish respondent for allowing its administration to treat the student and petitioner unfairly.

Respondent denies petitioner’s contentions and argues that it appropriately imposed an athletic suspension upon the student in accordance with its handbook.  Respondent also asserts that petitioner failed to appeal the suspension in accordance with the procedures set forth in its handbook.  Respondent requests dismissal of the appeal in its entirety.

I must first address several procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

Next, with respect to petitioner’s request that I direct respondent to provide petitioner with the identity of the person who took the photograph in the limo bus as well as the individual who, allegedly altered it, I note that an appeal to the Commissioner under Education Law §310 is appellate in nature and does not provide for discovery (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Krantz, 38 id. 485, Decision No.14,077; Appeal of Schonfeld, 38 id. 306, Decision No. 14,040). 

Next, to the extent that petitioner requests that I admonish respondent for alleged misconduct, such claim must be dismissed.  It is well established that I do not have the authority to censure or reprimand a board member (Appel of Oglesby, 51 Ed Dept Rep, Decision No. 16,311; Appeal of Kozak, 39 id. 278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251).

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).  The record indicates that petitioner’s request for interim relief was denied, the student served the athletic suspension and petitioner did not request expungement of the student’s record.  Therefore, no further meaningful relief can be granted and the appeal must be dismissed as moot (Appeal of S.V., 55 Ed Dept Rep, Decision No. 16,829; Appeal of a Student with a Disability, 53 id., Decision No. 16,561; Appeal of H.B., 49 id. 433, Decision No. 16,073, aff’d, Index No. 6819-10, Sup. Ct. Albany Co., [McGrath, J.] Jan. 14, 2011).[2]  In the reply submitted by petitioner, he asserts that, should the appeal be considered moot because his grandson completed the suspension or no longer wishes to play sports, a decision on the merits is still requested to restore the student’s “positive standing.”  He requests that he matter not be considered moot because the claim is likely to recur.

First, petitioner’s contention is raised for the first time in the reply.  As noted above, a reply may not belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).

In any event, although claims that are “capable of repetition yet evading review” provide an exception to the mootness doctrine (Southern Pac Terminal Co. v. Interstate Commerce Comm’n, 219 US 498), such is not the case presented here.  As noted below, the student has subsequently graduated and the claim, thus, is not likely to recur.  Even if the claim was likely to recur, an appeal seeking expungement of a student’s record would present a live controversy and would not evade review.  It was petitioner’s prerogative to request expungement in the petition; his failure to do so does not resurrect an otherwise moot controversy.  Consequently, there is no basis presented for application of an exception to the mootness doctrine on the record before me.

I note that, in response to a request from my Office of Counsel pursuant to §276.5 of the Commissioner’s regulations, the parties indicate that the student graduated.  Counsel for respondent also indicates that the student’s record contains no reference to the athletic suspension at issue in this appeal.  Although petitioner asserts that he did not receive “documentation” from respondent confirming such expungement, he does not contest respondent’s assertion that the student’s record, in fact, contains no reference to the athletic suspension.    I note that the student’s records may be subject to examination pursuant to the federal Family Educational Rights and Privacy act (20 USC §1232g; 34 CFR Part 99).

In light of the above disposition, I need not address the parties’ remaining contentions.[3]

THE APPEAL IS DISMISSED.

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