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Decision No. 13,932

Appeal of D.M., on behalf of her son, K.M., from action of the Board of Education of the Brentwood Union Free School District regarding student discipline.

Decision No. 13,932

(May 6, 1998)

Long Island Advocacy Center, Inc., Michael E. Deffet, Esq, of counsel, attorneys for petitioner

Bernard T. Callan, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals an alleged "involuntary transfer" of her son to respondent's Evening High School program. The appeal must be dismissed.

On May 2, 1996, a disciplinary hearing was held to determine charges of endangerment and insubordination against petitioner's son, arising out of a fight he engaged in with another student on February 6, 1996. At the hearing, petitioner's son pled "guilty with an explanation", the explanation consisting of representations that he was acting in self-defense at the time of the incident. The hearing officer's recommendations, which were approved by respondent's superintendent by letter dated May 7, 1996, directed that the petitioner's son: (1) be removed from the regular day high school program and be maintained on a home teaching program until the end of the 1995-96 school year; (2) be "allowed to continue his pursuit of a diploma through an alternative program – the Evening High School"; (3) be barred from all school properties and activities, with the exception of attendance at the Evening High School program; and (4) that a copy of the findings be made a part of the student's permanent record.

Petitioner appealed the superintendent's decision to respondent. On June 13, 1996, respondent approved a resolution to affirm the superintendent's decision. Petitioner commenced this appeal on November 7, 1996 and requested that I issue an interim order directing respondent to allow her son to return to the Brentwood High School pending the resolution of her appeal. By letter dated November 25, 1996, my Office of Counsel advised petitioner that no stay order would be issued.

Petitioner alleges that her son was involuntarily transferred to the Evening High School in violation of the procedures set forth in Education Law "3214(5). Specifically, petitioner contends that as a result of the hearing officer's finding and recommendation concerning the Evening High School program, respondent purported to accomplish an involuntary transfer of the student from the regular high school to the Evening High School, to commence at the start of the 1996/97 school year. Petitioner requests that I annul and vacate the superintendent's decision insofar as it purports to involuntarily transfer her son.

Respondent contends that the hearing officer's recommendation with respect to the Evening High School program was not an "involuntary transfer" contemplated under Education Law "3214(5) but was an alternative means made available to the student, if he elected to participate, to obtain the necessary credits to graduate, in lieu of the expulsion recommended at the hearing by the high school principal. Respondent contends that its actions were taken pursuant to Education Law "3214(3)(c) and (d), which pertain to student disciplinary matters that may result in suspension or expulsion and which provide for "instruction elsewhere", rather than Education Law "3214(5) pertaining to involuntary transfers. Respondent also contends that the appeal must be dismissed as untimely, as moot, and for "failure to comply with 8 NYCRR "[sic]275."

The appeal must be dismissed as untimely. 8 NYCRR "275.16 requires that an appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. Petitioner appeals an alleged "involuntary transfer" of her son. Respondent's decision with respect to such alleged transfer was made final and became effective when it adopted a resolution on June 13, 1996 which approved the superintendent's decision accepting the hearing officer's recommendations. Petitioner's appeal was initiated more than 30 days from June 13, 1996 and is therefore untimely (Appeal of T.B., 35 Ed Dept Rep 408).

The appeal must also be dismissed as moot. Respondent's attorney has submitted a letter stating that petitioner's son graduated from the district on June 28, 1997. The Commissioner 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 Ytuarte, et al., 36 Ed Dept Rep 238).

While the appeal must be dismissed as untimely and moot, I note that the superintendent's determination that the student "be allowed to continue his pursuit of a diploma through an alternative [Evening High School] program", would appear to constitute an involuntary transfer under Education Law "3214(5). I remind respondent that it may not use a disciplinary hearing under Education Law "3214(3)(c) to effect an involuntary transfer under Education Law "3214(5)(Appeal of Reeves, 37 Ed Dept Rep 271).