Appeal of E.F., on behalf of his child, from action of the Board of Education of the Franklinville Central School District regarding student discipline.

Decision No. 18,206

(October 25, 2022)

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Franklinville Central School District (“respondent”) imposing discipline on his child (the “student”).  The appeal must be dismissed. 

The student attended respondent’s school during the 2021-2022 school year.  On April 29, 2022, the student admitted to vaping in the school bathroom using another student’s vaping device.  The student served an in-school suspension for three days for “vaping in the bathroom” from April 29 through May 3, 2022.  Additionally, the student’s misconduct resulted in his suspension for the remainder of the 2022 baseball season.  Petitioner appealed these suspensions to the superintendent and respondent; his appeals were denied.  This appeal ensued.

Petitioner contends that although the student used a vape device, he did not “possess” the vape because he used another student’s device.  Petitioner requests, among other things, that the student’s out-of-school and athletic suspensions be “annulled and expunged” from his record.

Respondent argues that the student admitted that he engaged in the underlying conduct and that the discipline imposed was proportionate to the severity of the offense involved. 

Initially, I must address the scope of this appeal.  Petitioner alleges that he received inadequate notice of his right to request an informal conference prior to the student’s suspension.  There is no evidence that petitioner raised these contentions at the local level.  Where State law provides for an initial district-level decision, 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 T.F., 60 Ed Dept Rep, Decision No. 17,966; Appeal of A.C., 59 id., Decision No. 17,799; Appeal of N.H., 59 id., Decision No. 17,732).  Accordingly, these contentions are not properly before me and cannot be considered.[1]

Additionally, the appeal must be dismissed, in part, as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  The student has served the in-school suspension and the spring 2022 baseball season has concluded.  Accordingly, the appeal is moot except for petitioner’s request for expungement of the incident from the student’s record (see Appeal of A.V. and S.A.-V., 53 Ed Dept Rep, Decision No. 16,528; Appeal of a Student with a Disability, 49 id. 204, Decision No. 16,002).

Turning to the merits, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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’s allegation that the in-school and extracurricular suspensions were excessive is without merit.  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 shocking to the conscience as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055; Appeal of C.N. and C.N., 60 id., Decision No. 17,954).  The record reflects that the student was previously suspended for using a vape device on school property in May 2021.  Under the circumstances, I do not find a three-day in-school suspension for a second instance of vaping on school property to be excessive (see generally Appeal of D.K., 58 Ed Dept Rep, Decision No. 17,539).

As for the student’s athletic suspension, a board of education has broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and the Commissioner will not overturn such standards or the board’s application thereof absent an abuse of discretion (Appeal of T.T. and K.T., 52 Ed Dept Rep, Decision No. 16,386; Appeal of M.K., 48 id. 462, Decision No. 15,916).  Here, both the student and his mother reviewed and signed a “Student Participation Agreement,” which mandates that, for a second instance of misconduct, a “student/athlete will be suspended from athletic eligibility for thirty (30) school days or the balance of the sports season, whichever is longer.”  It is undisputed that the student twice used a vape device on school grounds.  Thus, respondent reasonably suspended the student for the remainder of the spring 2022 sports season.

Petitioner nevertheless argues that the student was not “apprehended” with a vape, the verb utilized in respondent’s athletic department regulation (“athletic code”).  The relevant portion of the athletic code reads:

Any student/athlete apprehended with a controlled substance or who is apprehended with alcohol and/or under the influence of alcohol or who is apprehended with a tobacco product, including e-cigarettes, shall [incur athletic penalties] ….

This provision broadly prohibits drug and alcohol use.  Within this context, it appears that “apprehended with” was intended to refer a degree of proof (i.e., more than hearsay) rather than literal possession of drugs or alcohol.  Petitioner’s interpretation would invite absurd results: for example, the student could have smoked an entire pack of cigarettes in the bathroom so long as nothing was later found on his person.  Thus, I find that the student’s possession and use of a vaping device constituted misconduct that could give rise to an athletic suspension (see Appeal of Shramek, 39 Ed Dept Rep 577, Decision No. 14,317). 

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED. 

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