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Decision No. 12,602

Appeal of DORIS J., on behalf of her son BILL, from action of the Board of Education of Peru Central School District relating to participation in graduation exercises.

Appeal of IRENE S., on behalf of her son DONALD, from action of the Board of Education of Peru Central School District relating to participation in graduation exercises.

Decision No. 12,602

(November 20, 1991)

Stafford, Trombley, Purcell, Lahtinen, Owens & Curtin, P.C., attorneys for respondent, Dennis D. Curtin, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from a June 11, 1991 determination of respondent board of education, which barred each of their son's participation in graduation exercises. Because the facts and issues in the two appeals are identical, I will consolidate them for purposes of a decision. The appeals must be dismissed.

On Friday, June 5, 1991, petitioners' sons participated in the senior class trip to an amusement park in Canada. Respondent alleges that both students consumed alcohol, in violation of respondent's anti-drinking policy. This policy was communicated in writing to all seniors and their parents in a May 14, 1991 handout entitled "Special Notice to Seniors and Parents," which was mailed to all parents prior to the class trip. The policy was also orally communicated to seniors on May 10, 1991. The policy clearly stated that anyone under the influence of alcohol or drugs on the class trip would not be allowed to attend graduation.

During the trip, the class advisor observed petitioners' sons and two other students consuming alcoholic beverages. This fact was subsequently communicated to respondent's principal, who, on June 10, 1991, notified petitioners that because their sons were drinking alcoholic beverages on the class trip, they would not be permitted to participate in graduation. On June 11, 1991, petitioners appeared before respondent board to appeal the principal's decision. The board upheld the decision, and this appeal ensued.

The crux of petitioners' claim is that the policy of exclusion from graduation is not being applied even-handedly. Petitioners do not deny that their sons were drinking or that they were aware of the school policy. Rather, they allege, without offering any proof, that their sons were discriminated against because they were receiving "Individualized Educational Program" diplomas, a notion flatly denied by respondent.

The Commissioner of Education will decide only matters in actual controversy and will not render a decision upon a state of facts which no longer exists, or which subsequent events have laid to rest (Appeal of Becker, 29 Ed Dept Rep 419; Appeal of Vachon, 28 id. 276 [1989]; Matter of Rondot, 27 id. 143 [1987]; Matter of Shakow, 26 id. 520 [1987]). On June 21, 1991, I denied petitioners' applications for stay orders. The graduation took place on June 21, 1991. In light of the fact that graduation ceremonies have already occurred, the matter is academic and must be dismissed.

Even if the appeal were not moot, I would dismiss it on the merits. In order for a student to be disciplined for misconduct, there must be competent and substantial evidence that the student participated in the objectionable conduct (Matter of Ezard, 29 Ed Dept Rep 135, 137 [1989]; Matter of Chapman, 28 id. 272 [1989]; Matter of Wood, 27 id. 92 [1987]). Petitioners have not denied that their sons consumed beer. Indeed, Doris J. directly admitted in her petition that her son consumed beer, and Irene S. implied that her son had done the same. Moreover, respondent submitted an affidavit from the class advisor who observed petitioners' sons and two other students consuming beer. Nor have petitioners presented any evidence to support the contention that respondent arbitrarily applied its policy of exclusion to petitioners' sons and not to other students. Of the other two students who were observed consuming beer, one was a senior who was also excluded from graduation. The other student was ineligible to graduate for other reasons.