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Decision No. 14,340

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the Freeport Union Free School District relating to student discipline.

Decision No. 14,340

(April 19, 2000)

Leon & Deffet, Esqs., attorneys for petitioner, Michael E. Deffet, Esq., of counsel

Ingerman, Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals his son's suspension from school by the Board of Education of the Freeport Union Free School District ("respondent"). The appeal must be dismissed.

Petitioner's son attended high school in respondent's school district during the 1997-98 school year. On March 16, 1998, respondent's principal suspended petitioner's son for five days for insubordination and threatening and assaulting a teacher. A superintendent's hearing was scheduled on March 23, 1998 to determine whether a suspension beyond five days should be imposed. The hearing was held and petitioner's son was found guilty of the charges. During the course of the hearing, petitioner informed the hearing officer that his son was receiving private counseling. Upon receipt of this information, the hearing officer referred petitioner’s son to respondent’s Committee on Special Education ("CSE"), before proceeding further with the hearing, for a determination as to whether petitioner’s son was a student with a disability.

After evaluating petitioner’s son, the CSE met on March 31, 1998 and determined that petitioner’s son was not a student with a disability and was ineligible for special education services. Upon receipt of the CSE’s determination that petitioner’s son was not a student with a disability, the hearing officer for the superintendent’s hearing proceeded to determine the penalty warranted by the student’s misconduct. The hearing officer recommended the suspension of petitioner’s son for the remainder of the school year with home instruction provided. Respondent's superintendent of schools accepted the hearing officer’s findings and recommendations and, by letter dated April 1, 1998, notified petitioner of his son’s suspension.

By letter dated March 31, 1998, petitioner appealed the CSE’s determination to an impartial hearing officer pursuant to Education Law "4404. Petitioner also initiated this appeal on May 5, 1998. As part of his petition, petitioner requested an interim order prohibiting respondent from suspending his son during the pendency of this appeal. Petitioner’s request for interim relief was denied by letter dated May 26, 1998.

On May 20, 1998, petitioner and respondent stipulated to the withdrawal of petitioner’s request for a hearing, and respondent’s payment for certain independent evaluations petitioner wished to obtain. On June 3, 1998, petitioner sought reconsideration of the May 26, 1998 denial of his request for an interim order in this appeal. By letter dated June 10, 1998, petitioner’s request for interim relief was again denied.

Petitioner challenges respondent’s determination to suspend his son, alleging that the suspension violated his son’s rights as a student suspected of having a disability. Specifically, petitioner claims that respondent failed to conduct a manifestation determination prior to disciplining his son to ascertain whether his son’s misconduct was related to a disability, as claimed by petitioner. Petitioner also claims that respondent’s CSE was not properly constituted when it met to consider whether his son has a disability.

Respondent asserts that in disciplining petitioner’s son, it acted in compliance with the provisions of the Individuals with Disabilities Education Act (IDEA), that its CSE was appropriately constituted, and that suspension of petitioner’s son was in all respects proper.

Subsequent to completion of the record in this appeal, certain additional documentation was submitted. First, petitioner submitted additional educational evaluations of his son. In addition, as directed pursuant to 8 NYCRR "276.5, the parties provided affidavits setting forth details of the May 20, 1998 stipulation, as well as the student’s current educational status. Respondent indicates that upon completion of his suspension, petitioner's son returned to school for the 1998-99 school year. Thereafter, petitioner’s son withdrew from attendance at respondent’s high school. Petitioner does not dispute this, and there is no indication that petitioner’s son intends to return to school in respondent’s district.

Upon review of the record, I conclude that the appeal must be dismissed both on procedural grounds and because it is moot. The Commissioner of Education will only decide 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 A Student with a Disability, 39 Ed Dept Rep 223, Decision No. 14,221; Appeal of Kainz, 38 id. 339, Decision No. 14,049). In view of the fact that petitioner’s son no longer attends school in respondent’s district, the matter is moot and must be dismissed.

Even if the appeal were not moot, it would be dismissed due to lack of jurisdiction. Education Law "3214(c) provides, in pertinent part:

. . . The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent. The report of the hearing officer shall be advisory only, and the superintendent may accept all or any part thereof. An appeal will lie from the decision of the superintendent to the board of education who shall makes its decision solely upon the record before it. The board may adopt in whole or in part the decision of the superintendent of schools. . . .

The record indicates that petitioner did not appeal the superintendent’s decision to suspend his son to respondent. Petitioner’s claims regarding the propriety of the superintendent’s decision with respect to compliance with the provisions of the IDEA must first be addressed by respondent. As a result, this appeal was initiated prior to the exhaustion of the administrative remedy specifically provided by statute, which must be pursued before an appeal to the Commissioner may be commenced (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 327, Decision No. 14,251; Appeal of a Student Suspected of Having a Disability, 38 id. 641, Decision No. 14,108; Appeal of a Student Suspected of Having a Disability 38 id. 537, Decision No. 14,088).

To the extent petitioner challenges the appropriateness of the membership of the CSE, he may request an impartial hearing pursuant to Education Law "4404(1) and 8 NYCRR "200.5(d). If either party is dissatisfied with the hearing officer’s decision, it may seek review by the State Review Officer pursuant to Education Law "4404(2).