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Decision No. 14,369

Appeal of A STUDENT WITH A DISABILITY from action of the Board of Education of the Kings Park Central School District regarding participation in a field trip.

Decision No. 14,369

(May 19, 2000)

Pamela Phillips Tucker, Esq., attorney for petitioner

Ingerman Smith, LLP, attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals from the refusal of the Board of Education of the Kings Park Central School District ("respondent") to permit her son's participation in a trip to Italy with the school district's Chamber Singers, of which he is a member. The appeal must be dismissed.

Petitioner and her son reside in the Connetquot Central School District. Petitioner's son is a student with a disability identified by the Connetquot committee on special education ("CSE"). For the 1999-2000 school year, the Connetquot CSE recommended placement of petitioner's son in an Alternative Learning Center ("ALC") operated by the Board of Cooperative Educational Services for the Third Supervisory District of Suffolk County ("BOCES"), located at respondent's high school in the Kings Park Central School District. Petitioner's son had attended that program for the prior two years. During that time he participated as a member of the high school's Chamber Singers.

The history of this case is fully set forth in Appeal of a Student with a Disability, 39 Ed Dept Rep ___, Decision No. 14,368, dated May 19, 2000. As part of a prior appeal challenging respondent's exclusion of her son from its high school, petitioner sought an interim order directing her son's admission to the BOCES ALC at Kings Park High School. By order dated November 24, 1999, petitioner's request for interim relief was granted. Petitioner's son was re-admitted to the Kings Park High School and, upon his return, resumed participating as a member of the Chamber Singers.

The Chamber Singers were invited to perform in Italy from February 20 through February 28, 2000, during the school district's winter break. Petitioner's son paid the deposit required from each student who planned to go on the trip. On January 3, 2000, respondent notified BOCES that, for petitioner's son to participate in the trip to Italy, respondent would require BOCES to provide and pay for a chaperone specifically for petitioner's son. Respondent's determination was based on alleged "behavior issues" and the fact that certain support services provided to petitioner's son during the school year (i.e., school social worker) would not be available during the trip. BOCES was unable to provide a chaperone and referred the matter to the Connetquot CSE. By letter dated January 7, 2000, BOCES' Executive Director of Special Education informed respondent that the Connetquot Central School District was unwilling to pay for a chaperone for petitioner's son. Moreover, the individualized education program (IEP) recommended by the Connetquot CSE for the 1999-2000 school year did not require such service for petitioner's son. Nevertheless, because neither BOCES nor Connetquot would pay for a chaperone, respondent notified petitioner that her son would not be permitted to participate in the event. This appeal ensued.

As part of her appeal, petitioner sought an interim order directing respondent to permit her son to participate in the trip to Italy. By letter dated February 3, 2000, petitioner's request was denied.

Petitioner asserts that, by refusing to permit her son to participate in the trip to Italy without a chaperone, respondent discriminated against him in violation of "504 of the Rehabilitation Act of 1973. Petitioner also claims that, by its action, respondent violated the interim order issued on November 24, 1999 directing respondent to admit her son to the BOCES ALC program at the Kings Park High School. Petitioner seeks removal of the members of respondent board based on their alleged failure to comply with the interim order.

Respondent asserts that it has fully complied with the November 24, 1999 interim order. Respondent further asserts that its requirement that petitioner's son be chaperoned on the trip to Italy is rational and does not violate any provision of law.

The appeal must be dismissed on several procedural grounds. First, I note that the trip to Italy took place from February 20 to February 28, 2000 during the Kings Park Central School District's winter break. Because petitioner did not obtain the interim relief sought in her appeal, her son did not go on the trip to Italy. The Commissioner of Education will only decide 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 Lucas, 39 Ed Dept Rep 267, Decision No. 14,233; Appeal of Morenus, 39 id. 33, Decision No. 14,165). Because the trip has taken place and no further meaningful relief can be granted, that portion of the appeal is moot and dismissed.

The appeal must also be dismissed due to lack of jurisdiction. Petitioner alleges that respondent's action discriminated against him on the basis of his disability and, as such, violates "504 of the Rehabilitation Act of 1973 (29 USC "794). Enforcement of "504 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education (Appeal of a Student with a Disability, 36 Ed Dept Rep 322, Decision No. 13,736) and may not be obtained in an appeal brought pursuant to Education Law "310.

Petitioner also seeks removal of the members of respondent board pursuant to Education Law "306 for their alleged failure to comply with the November 24, 1999 interim order directing respondent to admit petitioner's son to the BOCES ALC program at the Kings Park High School. Petitioner claims that such order required respondent to permit her son to participate on the February trip to Italy with the district's Chamber Singers. I note, however, that petitioner failed to name or serve those members of the board of education whose removal she seeks. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Heller, 38 id 335, Decision No. 14,048). Sections 277.1 and 275.8(a) of the Commissioner's Regulations require that a copy of the petition for removal be personally served upon each named respondent. Moreover, an individual must be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition to inform the person that he or she should respond to the petition and enter a defense (Appeal of Lawson, supra). Since petitioner seeks removal of the members of respondent board, the rights of those individuals would clearly be affected if the petition were granted. Because no individual member of respondent board was named as a respondent in the caption of the petition or served with a copy of the petition, the appeal must also be dismissed for failure to join necessary parties.

In view of the disposition of this appeal on procedural grounds, I need not address petitioner's substantive claims.

THE APPEAL IS DISMISSED.

END OF FILE