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Decision No. 14,547

Appeal of THERESA PERRINO, on behalf of her son JASON MONTGOMERY, from action of the Board of Education of the Middle Country Central School District regarding an attendance policy.

Decision No. 14,547

(March 20, 2001)

Long Island Advocacy Center, Inc., attorneys for petitioner, Deborah Berger, Esq., of counsel

Guercio & Guercio, attorneys for respondent, Michael D. Jones, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Middle Country Central School District ("respondent") to drop her son Jason from English and Spanish classes due to excessive absences. The appeal must be dismissed.

On or about September 11, 2000, petitioner was notified by telephone that Jason had been cutting a number of classes. By letter dated September 20, 2000, she was advised that he had been illegally absent from English, Spanish and Math classes, and she was further advised that he would be dropped from these courses if he continued to be absent. By letters dated October 6, 2000 and October 19, 2000, petitioner was advised that Jason had been dropped from his English and Spanish classes due to excessive absences. This appeal ensued.

Petitioner asserts that the district"s attendance policy is illegal on its face and impermissibly distinguishes between excused and unexcused absences. In addition to requesting relief on behalf of her son, petitioner seeks to maintain this appeal on behalf of all students in respondent"s district affected by the attendance policy. Respondent asserts that Jason has been returned to his English and Spanish classes and that any drop/fail references have been redacted from his transcript. Respondent further asserts that it has adopted a new school attendance policy. Respondent contends that the petition has been rendered moot and that petitioner lacks standing to bring this appeal on behalf of other students.

To the extent petitioner seeks to maintain this appeal as representative of a class, she fails to establish the criteria required for approval of class status. Pursuant to 8 NYCRR "275.2, a class appeal may only be maintained where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members (Appeal of Aloisio, et al., 38 Ed Dept Rep 169, Decision No. 14,009). Petitioner must set forth the number of individuals that she seeks to represent (Appeal of Aloisio, et al., supra; Appeal of Sperl, 33 Ed Dept Rep 388, Decision No. 13,088), and must show that all questions of law and fact would be common to all members of the class (Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079). The petition herein sets forth no information regarding the number of members of the proposed class, and petitioner merely alleges that there are common questions of fact upon information and belief. Thus, petitioner"s request to maintain this proceeding as a class appeal is denied.

The appeal must be dismissed as moot. The Commissioner of Education will only decide matters in actual controversy and will not render a determination on a set of facts which no longer exists or which subsequent events have laid to rest (Appeal of Floramo, 39 Ed Dept Rep 389, Decision No. 14,269; Appeal of Wright, 38 id. 756, Decision No. 14,134; Appeal of Leslie, 38 id. 194, Decision No. 14,013). According to the record, Jason has been returned to his English and Spanish classes, and any drop/fail references have been redacted from his transcript. Additionally, the record indicates that respondent has adopted a new school attendance policy. While petitioner requests that I review respondent"s new attendance policy, I will not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law "310 (Appeal of Weiss, 39 Ed Dept Rep 69, Decision No. 14,176; Appeal of Lambert, 37 id. 599, Decision No. 13,937).

THE APPEAL IS DISMISSED.

END OF FILE