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Decision No. 13,516

Appeal of JAMES W. NASH, on behalf of his son, CHRISTOPHER P. NASH, from action of the West Irondequoit Central School District regarding student discipline.

Decision No. 13,516

(November 15, 1995)

Lynda M. VanCoske, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the refusal of the West Irondequoit Board of Education ("respondent") to permit his son Christopher to continue to attend school in the district after May 18, 1995. The appeal must be dismissed.

On May 11, 1995, Christopher Nash, a 17-year-old junior at Irondequoit High School, was suspended for five days after school authorities found marijuana in his school locker. On May 18, 1995, a hearing officer held a disciplinary hearing under Education Law '3214 and found Christopher guilty of insubordination and endangerment. Based on the findings and recommendation of the hearing officer, the superintendent suspended Christopher for the remainder of the school year (24 school days).

Petitioner filed this appeal requesting, among other things, that his son be permitted to attend school pending the outcome of the appeal and that his son receive help in completing missed exams.

Respondent raises a number of defenses, including failure to exhaust administrative remedies, failure to comply with procedural requirements, and failure to state a claim for relief.

As a threshold matter, I find that this appeal is moot to the extent that petitioner seeks readmission of his son during the 1994-95 school year. On May 18, 1995, Christopher was suspended from school for the remainder of the school year--until June 22, 1995. Petitioner commenced this action by serving respondent on June 19, 1995 and filing the petition with my office on June 23, 1995, one day after the suspension ended. Since the Commissioner only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest, the appeal is moot (Appeal of Warner, 32 Ed Dept Rep 533; Appeal of Langenmayr, 30 id. 322; Appeal of Vachon, 28 id. 276; Appeal of Rondot, 27 id. 143).

Moreover, this appeal must be dismissed on procedural grounds for failure to exhaust administrative remedies. Education Law '3214(3)(c) specifically requires that an appeal from a decision of a superintendent to suspend a student for a period in excess of five days be made to the board of education. The Commissioner has repeatedly held that a petitioner must exhaust this administrative remedy before initiating an appeal pursuant to Education Law '310 (Appeal of Benkelman, 34 Ed Dept Rep 250; Appeal of Oates, 34 id. 244; Appeal of Holliday, 29 id. 373). Because petitioner failed to exhaust his administrative remedies, this appeal must be dismissed.

Finally, petitioner's appeal must be dismissed on the merits. Petitioner contends that his son, Christopher, is entitled to attend district schools because he is a district resident and that respondent's superintendent wrongfully denied his request for Christopher's admission. Indeed, Education Law '3202(1) does provide, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

However, the Education Law also authorizes a school district to suspend a student, who otherwise would be eligible to attend, "who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others" (Education Law '3214(3)). Where a student is suspended for a period in excess of five days, the Education Law provides for a fair hearing, procedural safeguards, and the opportunity to appeal to the board of education (Id.). The decision of the board is ultimately reviewable by the Commissioner of Education (Education Law '310).

In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163) and the burden of demonstrating a clear legal right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). On the record before me, petitioner has failed to meet his burden. He has not alleged any facts which would provide grounds to question the validity of the suspension, the propriety of the procedures implemented by the school district, or the reasonableness of the penalty imposed. Accordingly, petitioner has failed to demonstrate any reason for me to disturb the determination of the school district.