Decision No. 13,283

(November 3, 1994)

SOBOL, Commissioner.--Petitioner appeals respondent's change in her son's placement due to his indefinite suspension from school. The appeal must be dismissed.

Petitioner's son, a sixteen year old student at Center Moriches High School, was classified learning disabled in January 1992 and was previously classified as emotionally disturbed. On March 16, 1994, petitioner's son was allegedly involved in a fight in the lunch room in which he attempted to strike a staff member. As a result of that incident, he was suspended from school for five days. A superintendent's hearing was held on March 22, 1994. On March 23, 1994, the superintendent suspended petitioner's son for the remainder of the 1993-94 school year. This suspension was based upon a finding of guilt on the charge of attempting to strike a staff member and the student's anecdotal record of disciplinary violations, including aggressive behavior toward other students. The suspension was scheduled to continue through the 1994-95 school year if petitioner's son failed to cooperate with his home tutors. On April 5, 1994, respondent's committee on special education (CSE) determined that the incident resulting in the student's suspension was not a result of his handicapping condition. On May 9, the CSE adopted an individualized education program (IEP) for petitioner's son, which provided for home tutoring. Petitioner consented to this IEP and subsequently filed this appeal.

Petitioner contends that her son's suspension was improper because the behavior for which he was disciplined resulted from his handicapping condition. She seeks reinstatement of the educational program specified in his prior IEP. Respondent contends the suspension was proper, because the underlying incident was not a result of the student's handicapping condition.

As a threshold matter, this appeal must be dismissed as moot. The record reflects that petitioner and her son are now residing in the State of Florida. Consequently, petitioner is no longer a resident of respondent school district and her son is no longer eligible to attend school in respondent's district. Since the Commissioner only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists, or which subsequent events have laid to rest, the appeal is moot to the extent that petitioner seeks the reinstatement of her son's prior IEP and his renewed attendance at respondent high school (Appeal of Lewis, 33 Ed Dept Rep 520; Appeal of Pierrot, 33 id. 67; Appeal of Warner, 32 id. 533; Appeal of Langenmayr, 30 id. 322).

Although I am dismissing this appeal as moot, because similar circumstances might arise again, I find it necessary to clarify the law. Because a suspension of ten or more days amounts to a change of placement under the Individuals with Disabilities Education Act (IDEA, 20 USC '1400 et seq.), in the absence of an agreement, respondent must obtain a court order to extend a suspension or home instruction beyond ten days (Honig v. Doe, 484 U.S. 305; Appeal of a Student with a Disability, 33 Ed Dept Rep 16). This applies even if a district has evidence that a student poses a danger in the school setting (Honig v. Doe, supra; Appeal of a Student with a Disability, supra).

Respondent asserts that the suspension of petitioner's son is justified because its CSE deemed his behavior to be unrelated to his handicapping condition. Respondent either misunderstands or is misapplying the law. In view of the student's anecdotal record, which reflects that he was having "progressive and aggressive" disciplinary problems, his previous classification as emotionally disabled, and his current IEP which states "the student has moderate problems relating appropriately to adults and/or peers," I question respondent's determination that petitioner's son's behavior was unrelated to his handicapping condition. Furthermore, respondent's reliance upon the failure to correlate petitioner's son's behavior with his handicapping condition to support its suspension of this classified student, without modifying his IEP, is in error. As noted above, a suspension in excess of ten days is considered a change in a classified student's placement (Honig v. Doe, supra). The record reflects this classified student was suspended in excess of ten days. Therefore, respondent should have obtained the consent of petitioner, secured a court order or referred the matter to its CSE for a reevaluation of the appropriateness of the student's IEP before suspending him for the balance of the school year. The record reflects that respondent did not obtain petitioner's consent to employ home instruction for her son until May 9, 1994, several weeks after his suspension. Because this consent was obtained only after the change in placement had already occurred, respondent was not in compliance with the law. Respondent is admonished to conform its future practices to State and federal law requirements.

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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