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Decision No. 14,332

Appeal of JAMES and RUTH SUTTON, on behalf of STEPHEN SUTTON, from action of the Board of Education of the Hoosick Falls Central School District regarding school enrollment.

Decision No. 14,332

(April 12, 2000)

Gleason, Dunn, Walsh & O’Shea, attorneys for petitioners, Ronald G. Dunn, Esq., of counsel

Gunter Dully, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal the refusal by the Board of Education of the Hoosick Falls Central School District ("respondent") to enroll their son, Stephen, in respondent’s schools. The appeal must be dismissed.

Petitioners reside within the Hoosick Falls Central School District. At the time this appeal was commenced, Stephen was enrolled as an eighth grade student in a nonpublic school. Prior to the 1998-99 school year, an agreement was allegedly reached between petitioners and respondent’s former high school principal to simultaneously enroll Stephen as an eighth grade student in the district. Under the alleged agreement, Stephen would take regular education high school courses on an accelerated basis in addition to a full course load at the nonpublic school.

In or about August 1998, petitioners’ request to enroll Stephen in the district was brought to the attention of respondent for its review and consideration. On September 12, 1998, respondent adopted a resolution denying petitioners’ request. This appeal ensued.

Petitioners claim that respondent is bound by the agreement reached with its former high school principal. Citing Stephen’s academic record at the nonpublic school, they maintain that he is academically prepared to begin high school courses in the eighth grade. They further allege that respondent has permitted other students to partially enroll in respondent’s schools and there would be no additional cost to the district. Accordingly, petitioners submit that it was an abuse of discretion for respondent to deny their request for partial enrollment. In the alternative, petitioners contend that their request constitutes a request for dual enrollment in a gifted education program pursuant to Education Law "3602-c and that Stephen is entitled to enroll in the district on that basis.

Respondent contends that the petition is untimely and should be dismissed. Respondent further maintains that any alleged agreement petitioners reached with the district’s former high school principal was entered into without the knowledge of respondent or its superintendent and is a nullity. Respondent also argues that it lacks the authority to grant petitioners’ request. Respondent denies petitioners’ claim that similarly situated students have been allowed to partially enroll in the district. Respondent further submits that the requested courses are outside the scope of services covered by Education Law "3602-c. In the alternative, respondent contends that petitioners' request was not timely under Education Law "3602-c.

An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent denied petitioners’ request to enroll Stephen in its schools at a September 12, 1998 meeting. Respondent’s superintendent advised petitioner of this decision by letter dated September 14, 1998. Even if petitioners were notified on September 12, 1998, their appeal, which was commenced on October 13, 1998, is timely since October 12, 1998 fell on Columbus Day, a public holiday (see General Construction Law "25-a; Appeal of Shaver, 38 Ed Dept Rep 570, Decision No. 14,096; Appeal of Hobbs, 38 id. 203, Decision No. 14,015).

However, the appeal must be dismissed as moot. It is well settled that the Commissioner of Education will decide only matters in actual controversy and will not render a decision upon a state of facts which no longer exists or concerning a controversy which subsequent events have laid to rest (Appeal of Lynn I., 39 Ed Dept Rep 76, Decision No. 14,179; Appeal of Schuler, 37 id. 512, Decision No. 13,915; Appeal of Lawson, 36 id. 450, Decision No. 13,774). Petitioners’ attorney has informed my Office of Counsel that Stephen has advanced to the ninth grade. Petitioners’ request for relief is limited to Stephen’s enrollment as an eighth grade student in respondent’s district. Accordingly, it is no longer possible to grant the relief requested.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioners have failed to demonstrate that respondent acted unreasonably in denying petitioners’ request to enroll Stephen in respondent’s schools to take accelerated regular education courses. In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Logan, 38 Ed Dept Rep 694; Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797; Appeal of Lindauer and McKee, 34 id. 596, Decision No. 13,421). With certain limited exceptions not applicable here, the Legislature has not authorized partial attendance at a public school. Therefore, as a general rule, boards of education are not authorized to instruct students on a part-time basis (Appeal of Michael and Elizabeth B., 18 Ed Dept Rep 19, Decision No. 9,722; Appeal of Mayshark, 17 id. 82, Decision No. 9,502).

Education Law "3602-c, however, provides that pupils in nonpublic schools may also enroll in public school programs in three limited categories: occupational education, gifted education and education for students with disabilities. Petitioners suggest that accelerated regular education classes automatically constitute a gifted education program. I find this argument without merit. Gifted education programs or services are those beyond the regular school program (Handbook on Services to Pupils Attending Nonpublic Schools, The State Education Department, Office for Nonpublic Schools, 1995). The record demonstrates that at the time of this appeal, respondent did not offer a gifted education program beyond the sixth grade and that the courses requested were part of the district’s regular education program. Therefore, respondent appropriately denied petitioners’ request.

In view of the foregoing disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE