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Decision No. 14,242

Appeal of K.B., on behalf of B.B., from action of the Board of Education of the Lawrence Union Free School District regarding participation in a program for gifted and talented students.

Appeal of J.B., on behalf of S.B., from action of the Board of Education of the Lawrence Union Free School District regarding participation in a program for gifted and talented students.

Decision No. 14,242

(November 2, 1999)

Minerva and D'Agostino, P.C., attorneys for respondent, Albert A. D'Agostino, Esq., of counsel

MILLS, Commissioner.--Petitioners are the parents of students attending school in the Lawrence Union Free School District. They appeal respondent's refusal to permit their children to continue participating in the district's program for gifted and talented students in the 1998-99 school year. Because petitioners' claims are identical, are based upon the same facts and seek similar relief, the appeals are consolidated for decision. They must be dismissed.

Petitioner K.B.'s son and petitioner J.B.'s daughter participated in respondent's gifted and talented program (the "program") during the 1996-97 and 1997-98 school years. On June 16, 1998, respondent revised the procedures and criteria by which students were determined eligible to participate in the program. The new procedures and criteria were adopted as a result of a pre-existing agreement between respondent and the United States' Department of Education, Office for Civil Rights. As part of the newly adopted procedures and criteria, students were screened annually to determine whether they would continue to participate in the program during the next school year.

By letter dated September 11, 1998, each petitioner was informed that her child was not eligible to participate in the program during the 1998-99 school year. Petitioners appealed to respondent. Their requests were denied. These appeals ensued.

Petitioners challenge the adequacy of the notice provided prior to the removal of their children from the program. They also claim that the newly adopted criteria are subjective, and were not fairly and consistently applied to all students. Respondent asserts that the appeals are untimely, that the matter is moot, that the revised procedures and criteria adopted at its June 16, 1998 meeting are valid and appropriate and that such procedures and criteria have been implemented properly.

I will first address the procedural defenses raised by respondent. First, respondent asserts that the appeals are untimely. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be commenced within thirty days of the action or decision complained of. Respondent contends that the thirty-day time period began to run on September 11, 1998 -- the date of the letters to petitioners informing them that their children were not eligible to participate in the program during the 1998-99 school year. In their respective replies, petitioners indicate that upon receipt of the September 11, 1998 letter, they followed the district's "chain of command" to challenge the September 11 decision and that, therefore, the appeals should not be dismissed as untimely. However, petitioners attach, as an exhibit to the verified replies, a chronology of events indicating that they appealed to respondent at its meeting held on October 27, 1998, and that respondent denied the appeals at that same meeting. Therefore, I find that the thirty-day time period began on October 27, 1998, not on September 11, 1998, as respondent claims. Nevertheless, the record indicates that petitioner K.B. did not serve a verified petition upon respondent until December 14, 1998, and petitioner J.B. did not serve a verified petition upon respondent until December 17, 1998. Thus, both appeals were initiated beyond the thirty-day period and are untimely.

The appeals must also be dismissed as moot. In their requests for relief, petitioners seek a determination that the students are entitled to continue in the district's program during the 1998-99 school year. Upon initiation of the appeals in December 1998, each petitioner requested an interim order directing respondent to permit her child to continue to participate in the program. On December 31, 1998, I denied petitioners' requests for interim relief. The Commissioner of Education will only consider 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 (Appeal of a Student with a Disability, 38 Ed Dept Rep 91, Decision No. 13,990; Appeal of Schuler, 37 id. 512, Decision No. 13,915). As noted, petitioners only seek the students' continued participation in the district's gifted and talented program for the 1998-99 school year. As that school year has ended, and I have already ruled on the relief sought, the appeals are moot.

THE APPEALS ARE DISMISSED.

END OF FILE