Decision No. 13,291

(November 22, 1994)

Shaw & Silveira, attorneys for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's decision to suspend his son from school for two days and requests various forms of declaratory relief. The appeal must be dismissed.

During the 1993-1994 school year, petitioner's son, Scott, was a seventh grade student in the Washingtonville Central School District. On December 20, 1993, Scott was involved in a fight with another student. That afternoon, Scott was purportedly suspended by the assistant principal. The suspension was to be served on December 21 and 22. On the afternoon of December 20, petitioner attempted to phone the assistant principal and later spoke to the principal. Petitioner requested that home instruction be provided to Scott during the period of suspension.

On the morning of December 21, 1993, after conferring with the assistant superintendent, the principal advised petitioner that the district was not required to provide home instruction if the period of suspension was less than three days and that such instruction would not be provided to Scott. Later that same day, the assistant superintendent reaffirmed the district's position in a call to petitioner, but stated that the suspension was treated as a legal absence and that petitioner could pick up his son's missed homework assignments from the school guidance office. At the same time, petitioner first raised the point that the suspension may have been unauthorized because it was made by an assistant principal.

On December 22, 1993, the principal wrote a letter indicating his concurrence with the assistant principal's actions, and "instituted and approved" the two-day suspension. On the same day, the superintendent wrote to petitioner, advised that he had reviewed the principal's letter and had determined that the suspension should be revoked and that all records referring to the incident should be expunged from Scott's records.

On January 5, 1994, petitioner obtained a copy of his son's attendance card, which indicated two illegal absences for December 21 and 22. However, respondent indicates that these absences have since been removed from Scott's record and attaches to its answer a copy of a corrected record. This appeal was commenced on January 6, 1994.

Petitioner does not contest the underlying factual basis for the suspension, which, in any event, was revoked by the superintendent on December 22, 1993. Rather, petitioner contends that Scott was entitled to alternative instruction provided by respondent district commencing immediately, i.e., on December 21, the first day of the suspension. Petitioner also seeks a determination as to whether Scott should have been marked "illegally absent," "legally absent," or "present" for the two days he was out of school.

Respondent contends that the matter is moot because the suspension was revoked by the superintendent. Respondent also contends that under the circumstances of a brief, two-day suspension, it had no obligation to provide alternative instruction.

I find that the appeal must be dismissed as moot, because the suspension was rescinded by the superintendent. The Commissioner of Education will decide only cases where an actual controversy exists and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Ferrara, 34 Ed Dept Rep 47; Appeal of Evans, 33 id. 572; Appeal of Chrisfield, 33 id. 463; Appeal of Hartmann, 32 id. 640). In addition to the rescission of the suspension, it is clear that respondent has expunged all mention of it from Scott's records and has indicated that Scott was not absent on December 21 and 22 on his attendance card.

Although I dismiss the appeal, I must deal with the manner in which respondent handled this matter, since it is likely to recur. Education Law '3214(3)(e) provides in part as follows: "Where a pupil has been suspended as insubordinate or disorderly and said pupil is of compulsory attendance age, immediate steps shall be taken for his attendance upon instruction elsewhere or for supervision or detention . . ." (emphasis added). In Matter of Manson, 11 Ed Dept Rep 48, the Commissioner held that petitioner high school students "should not have been deprived of instruction from the period beginning March 15, 1971 to March 30, 1971, when alternative instruction was first provided." In Matter of Turner v. Kowalski, 49 AD2d 943, the Appellate Division, Second Department, considered a policy of the Port Chester-Rye Union Free School District and declared that the failure to provide alternative instruction for students suspended for a period of five days or less was in violation of Education Law '3214. The court went on to say: "Naturally, the term `immediately' does not mean `instantaneously,' but it does mean that the educators should act reasonably promptly, with due regard for the nature and circumstances of the particular case . . . ." In Matter of Klug, 20 Ed Dept Rep 134, the Commissioner found that a suspension of nineteen days without alternative instruction could not be condoned. In Matter of Kulik, 21 Ed Dept Rep 567, the Commissioner made the following statement:

These authorities demonstrate that a school district may not, as a matter of policy, restrict alternative instruction in the case of short suspensions. When a student of compulsory school age is suspended pursuant to Education Law '3214, a school district must act reasonably promptly to provide alternative instruction, regardless of the length of the suspension. I recognize that in some circumstances this will be more difficult to arrange than in others, and due regard must be taken for the nature and circumstances of the particular case (Appeal of Warner, 32 Ed Dept Rep 533, 536). However, respondent is admonished to comply fully with the dictates of Education Law '3214 regarding the provision of alternative instruction in the imposition of any further disciplinary sanctions.

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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