Appeal of T.F.[1] from action of the Board of Education of the Wellsville Central School District regarding student discipline.

Decision No. 17,966

(March 15, 2021)

Law Offices of Harris Beach, PLLC, attorneys for respondent, Brendan P. Kelleher, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Wellsville Central School District (“respondent”) to impose discipline upon him.  The appeal must be dismissed.

Petitioner attended his senior year of high school in respondent’s district during the 2019-2020 school year.  On October 5, 2019, petitioner attended a homecoming dance while under the influence of marijuana.  Petitioner later submitted a voluntary statement to the local police department, in which he admitted that he was under the influence of marijuana at the dance.  He also admitted that marijuana had been in the vehicle that he had driven to the school and parked on district property.

By letter dated October 7, 2019, the high school principal imposed a five-day out-of-school suspension for petitioner’s conduct.

By letter dated October 8, 2019, respondent’s superintendent scheduled a hearing for October 10, 2019 to determine whether to impose an additional, long-term suspension for petitioner’s conduct.  The superintendent charged petitioner with “[e]ngaging in [c]onduct that endangers the safety, morals, health, or welfare of others” by:  (1) being “under the influence of marijuana at the Homecoming Dance”; and (2) “possessi[ng] ... marijuana on school property.”

Prior to the long-term suspension hearing, petitioner and the district agreed to modify the second charge to read:

[w]ith marijuana in his vehicle, [petitioner] drove his car to the Homecoming Dance and parked his car on school property.  [Petitioner] admitted he was aware that marijuana was in his car.  

The hearing, presided over by a hearing officer, convened as scheduled.  Petitioner, who attended the hearing with his father, admitted that he had engaged in the charged misconduct.

In a written report dated October 11, 2019, the hearing officer recommended that petitioner be found guilty of the charges against him.  With respect to penalty, the hearing officer recommended that petitioner be suspended for 30 additional school days.  The hearing officer further recommended that the district offer petitioner the opportunity to serve only 10 days of the suspension if he “agree[d] to a behavioral contract.”  In particular, the hearing officer recommended that the behavioral contract require petitioner to abide by the district’s code of conduct and to attend counseling, including “substance abuse and mental health counseling components.”

By letter dated October 11, 2019, the superintendent adopted the hearing officer’s recommendation concerning guilt.  The superintendent also adopted the hearing officer’s recommendation as to penalty but modified the proposed behavioral contract such that petitioner agreed “not to attend the next secondary school dance.”  Petitioner appealed the superintendent’s decision to respondent.

On October 15, 2019, petitioner, his mother, and the superintendent’s designee executed the behavioral contract, thereby reducing petitioner’s suspension to 10 days, “including the five [that petitioner had] already served.”[2]  The behavioral contract indicated that it would remain in effect “for the remainder of the 2019-2020 school year.”

By letter dated October 24, 2019, respondent notified petitioner that, on October 22, 2019, it had denied his appeal and upheld the superintendent’s decision.  This appeal ensued.

Petitioner argues that the behavioral contract was “vague” and not a “valid, binding contract.”  Petitioner further argues that the long-term suspension was excessive and that the hearing officer and superintendent failed to make a finding of guilt as to the first charge of being under the influence of marijuana and “erroneously determined” that the second charge violated respondent’s code of conduct.  Petitioner seeks an order expunging the long-term suspension from his record.  Petitioner further seeks a determination that the behavioral contract “is voided and vacated.”

Respondent contends that the appeal must be dismissed as moot to the extent that petitioner executed the behavioral contract and returned to school in compliance with its terms.  Respondent further contends that its decision to suspend petitioner was based on competent and substantial evidence; that petitioner admitted his guilt as to the charges against him; that the penalty was not excessive; and that petitioner has not met his burden of proof.

To the extent that petitioner challenges any aspect of the behavioral contract, 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 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).  Petitioner executed the behavioral contract on October 15, 2019 and served the entirety of his reduced suspension as of October 22, 2019.  Moreover, the behavioral contract, on its face, remained in effect only through the conclusion of the 2019-2020 school year, which was petitioner’s senior year.  Because the 2019-2020 school year has ended and the behavioral contract is no longer in effect, there is no meaningful relief that petitioner could receive with respect thereto (see generally Appeals of Rodriguez, 60 Ed Dept Rep, Decision No. 17,938).  Accordingly, the appeal must be dismissed as moot insofar as it challenges the behavioral contract.[3]

To the extent that petitioner alleges the district failed to make a finding as to the first charge and erroneously determined that the second charge violated the code of conduct, these claims are improperly raised for the first time on appeal.  It is well settled that arguments may not be raised for the first time in an appeal to the Commissioner pursuant to Education Law §310 (see e.g. Appeal of A.C., 59 Ed Dept Rep, Decision No. 17,799; Appeal of N.H., 59 id., Decision No. 17,732).  In his written appeal to respondent, petitioner objected to the long-term suspension as “excessive and inappropriate” and asserted that the behavioral contract was “ineffective and unenforceable” due to “lack of consideration.”  Petitioner did not argue that the superintendent failed to make a finding of guilt with respect to the first charge or that the second charge did not constitute a violation of the code of conduct.  Accordingly, petitioner cannot raise these new claims in the instant appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision  No. 17,297; Appeal of C.B.R., 57 id., Decision No. 17,211; Appeal of S.Z. and K.Z., 52 id., Decision No. 16,384).

In any event, I note that, even if properly presented, these claims lack merit.  First, the superintendent’s October 11, 2019 determination letter expressly adopted the hearing officer’s recommendations and indicated that petitioner “was found guilty of the charges as alleged in the Notice of Hearing.”  This refutes petitioner’s claim that the district did not make a finding of guilt as to the first charge.

With respect to the second charge, petitioner concedes that he knew that the vehicle he drove to the dance and parked on school property contained marijuana.  The Commissioner has previously held that the term “possess” includes actual or constructive possession of tangible property and that constructive possession of items is established where an individual had dominion and control over an automobile in which the items were found (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,408; Appeal of a Student with a Disability, 57 id., Decision No. 17,290).  Therefore, petitioner possessed marijuana, and it is well settled that possession of drugs constitutes conduct that endangers the safety, morals, health or welfare of others, as prohibited by respondent’s code of conduct (see e.g. Appeal of D.K., 58 Ed Dept Rep, Decision No. 17,538; Appeal of A.W., 57 id., Decision No. 17,524; Appeal of a Student with a Disability, 57 id., 17,408).  Respondent was thus well within its discretion to impose discipline based on petitioner’s possession of marijuana.

Turning to petitioner’s remaining claims, 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 M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).

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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909).

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).

Petitioner has not met his burden of showing that the long-term suspension was disproportionate to the severity of the offenses.  Petitioner admitted to, and was found guilty of, attending a school function while under the influence of marijuana and constructively possessing marijuana.  These are serious offenses, and the Commissioner has previously upheld substantial penalties for possession of marijuana (see Appeal of A.W., 57 Ed Dept Rep, Decision No. 17,254; Appeal of K.K., 51 id., Decision No. 16,358; Appeal of J.C., 46 id. 562, Decision No. 15,596).  Therefore, I cannot find that petitioner’s 30-day suspension, which was ultimately reduced to 10 days, was so excessive as to justify substituting my judgment for that of respondent.  Although petitioner has expressed remorse for his actions, his remorse alone does not compel a reduction of the penalty (see Appeal of P.K., 41 Ed Dept Rep 421, Decision No. 14,733).

Therefore, on this record, petitioner has not met his burden of proving a clear legal right to his requested relief.  I have considered petitioner’s remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

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