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Decision No. 13,175

Appeal of DAVID SMITH, on behalf of his daughter, TRISTA, from action of the Board of Education of the Salmon River Central School District regarding physical education instruction.

Decision No. 13,175

(May 9, 1994)

Cantwell & Cantwell, Esqs., attorneys for respondents, Paul M. Cantwell, Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a denial of his request to exempt his daughter, Trista, from participation in a portion of the physical education curriculum involving instruction in archery. The appeal must be dismissed.

Petitioner alleges he is a resident of the Salmon River Central School District, although he provides a mailing address in West Babylon, Suffolk County. At the beginning of the 1993-1994 school year, petitioner's daughter was a fourth grade student. In mid-October 1993, petitioner wrote to his daughter's physical education teacher requesting that Trista be exempted from the archery instruction then being conducted. Thereafter, petitioner spoke with the elementary school principal, the physical education instructor and the superintendent. On October 18, 1993, petitioner appeared before the Board of Education of the Salmon River Central School District, read a prepared statement and again requested that his daughter be exempted from archery instruction because of his philosophical opposition to the use of weapons of any kind. The board voted unanimously to deny petitioner's request.

Prior to the execution of the petition, petitioner removed his daughter from the Salmon River School District and placed her in another public school district.

The appeal must be dismissed. Both parties agree that Trista is no longer a student in respondent district. It is well established that the Commissioner of Education will not decide a matter where subsequent events have rendered the original controversy moot (Appeal of Paye, 33 Ed Dept Rep 241; Appeal of Auch, 33 id. 84; Appeal of Becker and Hargett, 29 id. 419; Appeal of Vachon, 28 id. 276).

Even if I were not dismissing this appeal on grounds of mootness, the appeal would be dismissed on the merits. The Regulations of the Commissioner of Education contain provisions dealing with exemptions from portions of the curriculum. Pursuant to 8 NYCRR 16.2, a student may be exempted on religious grounds from a portion of the health and hygiene curriculum which conflicts with the student's religious beliefs. Pursuant to 8 NYCRR '135.3(b)(2) and (c)(2)(i), a student may be exempted from instruction concerning methods of preventing the spread of AIDS if the parent or legal guardian files a written request and provides written assurance that the pupil will receive such instruction at home. The exemption sought by petitioner falls into neither of those categories, and petitioner has cited no authority supporting his request. As a result, there is no legal basis to grant petitioner's request. Accordingly, I do not find respondent's denial of petitioner's request improper.