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Decision No. 15,131

 

Appeal of a STUDENT SUSPECTED OF A DISABILITY by his parent, from action of the Board of Education of the East Irondequoit Central School District regarding student discipline.

 

 

(November 5, 2004)

 

Joyce B. Berkowitz, Esq., attorney for petitioner

 

Ferrara, Fiorenza, Larrison, Barrett & Reitz, attorneys for respondent, Norman H. Gross, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the East Irondequoit Central School District (�respondent�) to suspend her son from school.  The appeal must be dismissed.

During the 2003-2004 school year, petitioner's son was enrolled in the eighth grade in respondent�s middle school.  By letter dated October 9, 2003, the middle school principal advised petitioner and her husband that their son was being suspended for five days commencing October 9, 2003 for possessing marijuana.  By letter dated October 10, 2003, respondent�s superintendent advised petitioner and her husband that a superintendent�s hearing would be held on October 16, 2003 to determine whether further discipline was warranted.

At the hearing, the student admitted possessing marijuana.  By letter dated October 16, 2003, respondent�s superintendent informed petitioner and her husband that, based on the hearing officer�s findings, he found their son guilty of the possession charge and imposed a suspension through December 19, 2003.

By letter dated October 21, 2003, petitioner and her husband appealed the superintendent�s determination to respondent.  On November 7, 2003, petitioner apparently referred her son to the district�s Committee on Special Education (�CSE�) for evaluation.  By letter dated November 25, 2003, the district clerk advised petitioner and her husband that, at its November 24, 2003 meeting, respondent affirmed the superintendent�s determination, but expunged their son�s short-term suspension.  This appeal ensued.  Petitioner�s request for interim relief was denied on December 18, 2003.

     Petitioner contends that respondent did not provide her with timely notice of the short-term suspension, that respondent should have presumed that her son is a student with a disability and that the penalty imposed is excessive.  For relief, petitioner requests that respondent permit her son to return to school and expunge his records.  Additionally, petitioner requests that respondent provide her son with additional tutoring �to assist him in his transition back to class.�

     Respondent contends that it had no basis to suspect that the student is disabled and points out that, the district�s CSE later determined that the student did not, in fact, have a disability.

     Petitioner�s claim that she did not receive timely notice of the short-term suspension and her claim that respondent should have presumed her son to be a student with a disability must be dismissed as moot.  The Commissioner 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 Cordisco, 44 Ed Dept Rep ____, Decision No. 15,089; Appeal of Kushner, 43 id. _ __, Decision No. 15,040; Appeal of Reynolds, 42 id. 231, Decision No. 14,834).  Respondent has expunged the student�s short-term suspension from his record.  Further, following an expedited evaluation, the district�s CSE determined that the student does not, in fact, have a disability.  Because there is no meaningful relief that can be granted, these claims must be dismissed as moot.

Petitioner�s claim that the penalty was excessive must also be dismissed.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner�s judgment for that of the board (Appeal of D.C., 43 Ed Dept Rep    , Decision No. 14,976; Appeal of J.C. and P.C., 41 id. 395, Decision No. 14,723; Appeal of Harlan, 40 id. 309, Decision No. 14,488). I find that the penalty imposed in this case is not irrational or unreasonable and is within respondent�s discretion (see, Appeal of Hyde, 38 Ed Dept Rep 719, Decision No. 14,125).  Accordingly, I will not substitute my discretion for that of respondent.

 

THE APPEAL IS DISMISSED.

END OF FILE