Appeal of a STUDENT WITH A DISABILITY from action of the Board of Education of the Enlarged City School District of the City of Newburgh regarding student discipline.

Decision No. 15,180

(February 25, 2005)

Benjamin Ostrer & Associates, P.C., attorneys for petitioner, Michael Meth, Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw and Jillian E. Cass, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Enlarged City School District of the City of Newburgh ("respondent") to suspend petitioner for the remainder of the 2003-2004 school year. The appeal must be dismissed.

Petitioner was involved in a fight that took place on April 20, 2004 at respondent �s high school. A disciplinary hearing and a manifestation determination ensued. Respondent�s committee on special education ("CSE") found that petitioner had the ability to control his behavior and that his conduct was not a manifestation of his disability. The disciplinary hearing officer found petitioner guilty on one count and recommended that petitioner be suspended for the remainder of the 2003-2004 school year. This recommendation was upheld on appeal to respondent by decision dated May 12, 2004. This appeal ensued. Petitioner alleges that the penalty was excessive and seeks to have his record expunged.

Petitioner also filed a complaint against the district, the high school principal and respondent in New York State Supreme Court on April 30, 2004. The matter was subsequently moved to Federal District Court and on June 3, 2004, the Second Circuit affirmed the granting of a preliminary injunction returning petitioner to school.

On June 24, 2004, petitioner graduated from the district and on June 28, 2004, respondent passed a resolution to expunge the April 20, 2004 incident from petitioner�s disciplinary record.

The appeal must be dismissed as moot. 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 M.F. and J.F., 43 Ed Dept Rep 174, Decision No. 14,960; Appeal of a Student With a Disability, 42 id. 111, Decision No. 14,791). Since petitioner has graduated and his record has been expunged, no further meaningful relief can be granted.

In light of the foregoing disposition, I need not address the parties� remaining contentions.

THE APPEAL IS DISMISSED.

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