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Decision No. 14,366

Appeal of LUTHER K. ROBINSON and JAN ROBINSON, on behalf of LOREN ROBINSON, from action of the Board of Education of the Orchard Park Central School District regarding admission to the National Honor Society.

Decision No. 14,366

(May 18, 2000)

Offermann, Cassano, Greco & Slisz, LLP, attorneys for petitioner, Francis J. Offermann, Jr., Esq., of counsel

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys for respondent, Karl W. Kristoff, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the failure of the Board of Education of the Orchard Park Central School District ("respondent") to select their daughter for membership in the National Honor Society. The appeal must be dismissed.

During the 1997-98 school year, petitioners’ daughter, Loren, was a 17-year old junior at the Orchard Park High School located within the Orchard Park Central School District ("the district"). In March 1998, Loren was notified by the district’s chapter of the National Honor Society ("NHS") that she was eligible for NHS membership. Loren applied for NHS membership, but by letter dated April 2, 1998 was informed by the Faculty Council -- the body charged with selecting members for the district’s chapter -- that she had not been selected.

Petitioners appealed the Faculty Council’s decision first to Robert Farwell, respondent’s high school principal, then to Dr. Charles Stoddart, respondent's superintendent, and finally to respondent. In their appeal to respondent, petitioners alleged, among other things, that the Faculty Council had failed to promulgate its rules for the selection process, and that the Faculty Council’s destruction of its records prevented Loren from obtaining adequate review of its determination. For relief, petitioners requested that respondent reverse the Faculty Council’s decision and select Loren for NHS membership.

By letter dated June 24, 1998 respondent notified petitioners’ attorney that, in response to petitioners’ appeal, it had adopted the following resolution:

RESOLVED THAT, given the premature disposition of certain documentation and the lack of duly promulgated selection criteria, the candidacy of each eligible student who was not selected for membership in the National Honor Society in 1998 be reconsidered not later than December 31, 1998 pursuant to selection criteria revised and duly promulgated with the advice of the District’s attorneys.

By letter dated July 8, 1998, petitioners' attorney sought reconsideration of respondent’s determination. By letter dated July 16, 1998, Karl W. Kristoff, counsel to respondent, advised petitioners’ attorney that respondent would adhere to its previous determination. This appeal ensued.

Petitioners allege, among other things, that the rules governing the Faculty Council’s selection process were incomplete and not duly promulgated as required by the NHS Constitution, that the Council refused to select their daughter because she is African American, that the Faculty Council’s records were destroyed prematurely, and that Principal Farwell improperly consulted directly with members of the Faculty Council in determining their appeal. Petitioners also contend that the relief granted by respondent is insufficient and request that I either grant Loren membership in the National Honor Society and order the district’s chapter to revise its selection criteria, or void all the selections of the Faculty Council and order it to reconsider all candidates after promulgating selection criteria.

Respondent alleges that the petition should be dismissed because petitioner has failed to join as parties those students selected for NHS membership who could be adversely affected by a decision on the merits. Respondent also contends, among other things, that the Faculty Council’s decision was not arbitrary or capricious, and that the board of education, superintendent, high school principal and Faculty Council all acted in good faith.

I will not address the merits of petitioners’ claims because the appeal is moot. The Commissioner of Education only decides 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 Morenus, 39 Ed Dept Rep 33, Decision No. 14,165; Appeal of June D., 38 Ed Dept Rep 596, Decision No. 14,101). In response to an inquiry from my Office of Counsel, the parties have indicated that, pursuant to respondent’s June 23, 1998 resolution, all those students who were denied NHS membership in 1998, including Loren, were invited to have their NHS candidacy reconsidered by the Faculty Council. Subsequent to the initiation of this appeal, Loren did, in fact, seek reconsideration of her candidacy and submitted all relevant materials to the Faculty Council by November 12, 1998, as directed. In March or April 1999, Loren was notified that she had not been selected for NHS membership. The Faculty Council’s subsequent decision denying Loren membership supercedes its earlier determination and renders moot the facts and circumstances underlying the earlier decision (see, Appeal of Gnall, 35 Ed Dept Rep 166, Decision No. 13,502; Appeal of Impellizzeri, 32 Ed Dept Rep 26, Decision No. 12,745). Although Loren may feel aggrieved by the Faculty Council’s subsequent determination denying her NHS membership, she is aggrieved by a wholly new set of facts and circumstances that are not presently before me.

While I am constrained to dismiss this appeal as moot, petitioner may seek review of the Faculty Council’s subsequent determination by commencing a new appeal before the Commissioner. Although the 30-day statute of limitations for commencing such an appeal has lapsed, pursuant to "275.16 of the Commissioner’s regulations, I may excuse a failure to timely commence an appeal for good cause shown in the petition.