Appeal of I.D., on behalf of his son B.D., from action of the Board of Education of the City School District of the City of Lockport regarding student discipline.

Decision No. 17,518

(October 15, 2018)

Hodgson Russ LLP, attorneys for respondent, Jeffrey J. Swiatek and Luisa D. Johnson, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Lockport (“respondent”) to impose discipline upon his son (the “student”).  The appeal must be dismissed.

 At all times relevant to this appeal, the student attended respondent’s North Park Junior High School.  On or about March 8, 2018, respondent received an anonymous threat that there would be a school shooting.  Due to the threat, approximately half of the student body stayed home on the following day, March 9, 2018.  Those students who attended were required to walk through metal detectors when they entered school buildings.  Police officers were also stationed on-site.

During the school day on March 9, 2018, the student said to another student: “[h]ey, let me show you my gun.”  The record indicates that the student was immediately suspended for five days.  Respondent also scheduled a long-term suspension hearing for March 16, 2018.

In a written decision dated March 26, 2018, respondent’s superintendent determined that the student was guilty of the charged conduct.  However, the superintendent declined to impose an additional penalty and indicated that the student would “be permitted to return to North Park Junior High School.”  Petitioner appealed this decision to respondent.  In a letter dated June 6, 2018, the district clerk indicated that respondent “ha[d] determined that the suspension shall be annulled and expunged from the education record of [the student].”  This appeal ensued.

Petitioner raises various challenges to the process by which respondent investigated, and imposed discipline in connection with, the student’s conduct on March 9, 2018.  Petitioner argues that the student used the word “gun” to refer to his bicep muscle, and that this is a “well-known English idiom.”  For relief, petitioner seeks expungement of the student’s suspension.  Petitioner also seeks determinations that the student’s comment “did not disrupt the school environment in any fashion, and that no one ever perceived [the student] as any [sic] threat ....”  Petitioner additionally requests that respondent “make ... this case by the Commissioner public by posting it on its web site and by disseminating it via emails to all subscribers of the [p]arents’ [p]ortal of that web-site and via printed fliers and newsletters.”  Finally, petitioner requests that the student be “reinstate[d] ... into the National Junior Honor Society ....”

Respondent contends that the appeal is moot as it has expunged the suspension from the student’s record and that the student will be admitted into the National Junior Honor Society “[a]t a time convenient for the family.”

First, I must address a procedural matter.  Respondent objects to petitioner’s reply as outside the appropriate scope of a reply.  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.

The appeal must be dismissed, in large 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Here, respondent indicates that it has expunged all reference to the suspension from the student’s educational record.   Therefore, petitioner’s request that the student’s suspension be “annulled and expunged” is moot because petitioner has received this relief. 

Relatedly, petitioner’s challenge to the factual determinations underlying the student’s short-term suspension is also moot.  Even if petitioner were to prevail, the remedy for any such violation would be expungement of the suspension from the student’s record, which has already occurred.  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 He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).  Therefore, I decline to issue “determination[s]” that the student’s conduct was a “well-known English idiom” which “did not disrupt the school environment ...” or that “no one ever perceived [the student] as any [sic] threat ....”

Petitioner’s requested relief regarding the National Junior Honor Society must also be dismissed as moot.  Subsequent to commencement of this appeal, the junior high school acting principal determined that the student was eligible for induction into the National Junior Honor Society.  Respondent indicates that it could not induct the student immediately “given the [student’s] family’s summer vacation schedule, which prevented the student from being physically present to take an oath and sign the scroll.”  However, respondent indicates that the student will be inducted into the National Junior Honor Society “[a]t a time convenient for the family.”  Therefore, respondent has effectively granted petitioner’s request that the acting principal “reinstate [the student] in his rights to be introduced into the National Junior Honor Society and to promptly complete all necessary formalities.”  Although the student has not yet completed the induction activities, it appears from the record that respondent is ready and willing to facilitate this, and that any delay was attributable to the student’s family’s vacation schedule.

Finally, I note that 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  Here, petitioner has not pled or proven any facts which would justify ordering respondent to “make this [appeal] ... public” by ordering respondent to post this decision or portions of the record on its website or in print media.   Accordingly, petitioner has failed to carry his burden of proof in this regard.

Given this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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