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Decision No. 14,649

Appeal of a STUDENT WITH A DISABILITY, by her parents, from action of the Board of Education of the North Syracuse Central School District regarding participation in extracurricular sports.


Decision No. 14,649


(October 19, 2001)


Bond, Schoeneck & King, LLP, attorneys for respondent, Donald E. Budmen, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the North Syracuse Central School District ("respondent") finding their daughter ineligible to participate in the lacrosse program. The appeal must be dismissed.

Petitioners" daughter is fifteen years old and was identified as a student with a disability by respondent"s Committee on Special Education ("CSE") in June 1998. On April 6, 2000, the CSE provided petitioners" daughter with an individualized education program ("IEP") for the 2000-2001 school year during which she attended ninth grade at North Syracuse Junior High School.

On April 24, 2001, petitioners" daughter was referred for discipline, although no discipline was ultimately imposed, for refusing to take a State oral examination. That same day she was found ineligible for extracurricular sports and removed from the lacrosse team pursuant to respondent"s Scholastic Eligibility Policy #5200, which limits eligibility to students who have an overall average of 70 percent in the previous quarter, with not more than one failing course. Her mother complained in a letter dated April 25, 2001 to the superintendent that the student was humiliated by being removed from the team on the day of the first game and punished unfairly because her IEP was not being implemented. Respondent"s superintendent responded on May 4, 2001, following a May 3, 2001 meeting with petitioners, that the student's IEP had been implemented and that the student should not have been allowed to try out for the lacrosse team in the first instance because she was ineligible based upon her second period failing grades in Earth Science, Spanish and Math 9. In her May 4 letter, the superintendent apologized that the student's ineligibility was overlooked until the lacrosse roster was turned in and rechecked on April 24, 2001, but declined to waive respondent"s Scholastic Eligibility Policy #5200. Petitioners appealed to respondent at its meeting on May 7, 2001. On May 16, 2001, respondent upheld the superintendent"s determination. Petitioners" daughter was re-evaluated on May 22, 29 and June 1, 2001 and declassified by the CSE on June 13, 2001. Petitioners commenced this appeal on June 7, 2001.

Petitioners seek an order declaring that respondent denied their daughter a free appropriate public education; prohibiting respondent from denying her a free appropriate public education; and requiring respondent to amend its Scholastic Eligibility Policy #5200 to take into consideration the due process rights of a student with a disability prior to any social suspension.

Respondent contends that the appeal should be dismissed because disputes regarding the provision of a free appropriate public education must be taken to an impartial hearing. Respondent also contends that its Scholastic Eligibility Policy #5200 was applied properly to petitioners" daughter, whose IEP did not include a provision for participation in extracurricular activities. Respondent contends further that the appeal is moot because petitioners" daughter is now eligible to participate in sports based on her June 21, 2001 report card and is no longer entitled to the due process rights of students with disabilities, having been declassified by the CSE on June 13, 2001.

The Commissioner of Education will only consider 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 Diane M., 39 Ed Dept Rep 709, Decision No. 14,356; Appeal of Carney, 39 id. 255, Decision No. 14,229; Appeal of Studley, 38 id. 258, Decision No. 14,028). The issue of petitioners" daughter"s eligibility to participate in lacrosse is moot because the spring 2001 semester has ended and her eligibility was restored at the conclusion of the 2000-2001 school year.

To the extent petitioners dispute the provision of a free appropriate public education for their daughter, the proper avenue of redress is an impartial hearing (Education Law "4404(1), 8 NYCRR "200.5; Appeal of a Student with a Disability, 39 Ed Dept Rep 354, Decision No. 14,257; Appeal of a Student Suspected of Having a Disability, 37 id. 565, Decision No. 13,928).

I have considered petitioners" remaining claims and find them without merit.