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Decision No. 15,238

Appeal of S.A.M., on behalf of her son, A.S.M., from action of the Board of Education of the City School District of the City of Ithaca regarding denial of admission.

Decision No. 15,238

(June 17, 2005)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals actions of the Board of Education of the City School District of the City of Ithaca ("respondent") regarding the discipline of her son, A.S.M., and his admission to district schools. The appeal must be dismissed.

By letter dated December 30, 2004, respondent's superintendent suspended petitioner's son from the district's high school through the end of the 2004-2005 school year. On April 5, 2005, the Committee on Special Education ("CSE") held an initial referral meeting regarding A.S.M. This appeal ensued.

Petitioner alleges that the high school principal improperly attended the CSE meeting and improperly denied her son "re-admission " to the high school. Petitioner requests that her son be permitted to attend summer school in the district, that he be allowed to return to the district's high school in September 2005, and that the principal acknowledge his improper actions.

Respondent asserts that to the extent petitioner challenges the suspension, the appeal is untimely, and to the extent petitioner challenges her son's 2005-2006 placement, the appeal is premature. Respondent further maintains that the Commissioner lacks jurisdiction to review actions of the CSE. Respondent also denies that the principal refused A.S.M. readmission to the high school.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). To the extent petitioner appeals the suspension which was the subject of the December 30, 2004 letter, the appeal, which was commenced approximately four months later, without any explanation, must be dismissed as untimely.

To the extent petitioner seeks to challenge any alleged recommendations of the CSE, the appeal must be dismissed for lack of jurisdiction because those issues are properly the subject of an impartial hearing brought pursuant to Education Law �4404(1) and �200.5(c) of the Commissioner's regulations and not an appeal pursuant to Education Law �310. An impartial hearing officer ("IHO ") must, in the first instance, determine those issues. A person who is dissatisfied with the decision of an IHO may then appeal such decision to the State Review Officer ("SRO") pursuant to Education Law �4404(2) (see Education Law �4404(1) and (2); 8 NYCRR �200.5; Appeal of a Student with a Disability, 40 Ed Dept Rep 170, Decision No. 14,451; Appeal of a Student with a Disability, 39 id. 354, Decision No. 14,257; Appeal of a Student with a Disability, 39 id. 1, Decision No. 14,154).

To the extent petitioner appeals her son's 2005-2006 placement, the appeal must also be dismissed as premature. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Lombardo, 44 Ed Dept Rep 167, Decision No. 15,135; Appeal of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805; Appeal of Sheppard, 41 id. 150, Decision No. 14,643). There is no evidence in the record that A.S.M. will be denied admission to the high school in 2005-2006. Therefore, this claim must be dismissed as premature.

Similarly, the appeal is premature to the extent petitioner requests that her son be permitted to attend summer school. Pursuant to the superintendent's letter of December 30, 2004, A.S.M. will complete his suspensio n at the end of the 2004-2005 school year, which is June 30, 2005. He would then be eligible to apply for summer school like any other district student. There is no evidence that he applied for or has been denied admission to summer school.

In light of this disposition, I need not address the parties' remaining claims.

THE APPEAL IS DISMISSED.

END OF FILE