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Decision No. 14,791

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the City School District of the City of Cortland regarding student discipline.

Decision No. 14,791

(August 23, 2002)

Nina C. Aasen-Eddy, Esq., attorney for petitioner

Hogan & Sarzynski, LLP, attorneys for respondent, Ed Sarzynski, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a February 12, 2002 determination by the Board of Education of the City School District of the City of Cortland ("respondent") to suspend her daughter for the remainder of the 2001-2002 school year. The appeal must be dismissed.

Petitioner"s daughter attended ninth grade at Cortland Junior Senior High School during the 2001-2002 school year, after transferring from the Dryden Central School District in April 2001. Before leaving the Dryden School District, petitioner"s daughter was evaluated by Dryden"s school psychologist. The psychological evaluation indicated that petitioner"s daughter should be referred to the CSE for a determination whether to classify her as a student with a disability. Sometime after petitioner"s daughter enrolled in respondent"s school district, the district received the psychological evaluation report and, by letter dated July 10, 2001, notified petitioner that a meeting of its subcommittee on special education ("CSE") would be held July 19, 2001 to determine whether her daughter should be classified as a student with a disability. The CSE met on July 19, 2001 and determined that petitioner"s daughter was not a student with a disability. Petitioner was notified of the CSE"s determination and did not seek review of that determination by an impartial hearing officer.

On December 6, 2001, the school principal suspended petitioner"s daughter for five days for making a false bomb threat. By letter dated December 7, 2001, respondent"s superintendent notified petitioner that a disciplinary hearing would be held on December 12, 2001, pursuant to Education Law "3214. Petitioner"s daughter was charged with violating the student code of conduct by "engaging in conduct that was disorderly, disruptive, violent and endangered the safety, welfare, morals, health or welfare of others by falsely reporting a bomb threat in the Junior Senior High School on December 4, 2001."

At the hearing, petitioner"s daughter was represented by counsel. Upon hearing the evidence, respondent"s superintendent found petitioner"s daughter guilty of the charge. Prior to proceeding to the penalty phase of the hearing, the student"s attorney requested that the hearing be adjourned for an evaluation of the student by respondent"s CSE. Noting that respondent"s CSE had met the previous July and determined not to classify petitioner"s daughter as a student with a disability, respondent"s superintendent denied the request. The student"s attorney again requested that the CSE meet to determine whether the student"s behavior was a manifestation of a disability. The superintendent indicated that, while a subsequent referral could be made to the CSE, because the CSE had determined prior to the hearing that the student was not classified as having a disability, the hearing need not be adjourned and a penalty could be imposed.

By letter dated December 17, 2001, respondent"s superintendent notified petitioner of his finding that her daughter was guilty of the charge and that she was suspended from school for the remainder of the 2001-2002 school year. Petitioner appealed to respondent and, on February 12, 2002, respondent upheld the superintendent"s determination.

By letter dated February 1, 2002, petitioner requested a CSE meeting to "discuss" her daughter. The CSE met, evaluated petitioner"s daughter and on March 1, 2002 classified her as a student with a disability. The CSE developed an individualized education plan (IEP) for petitioner"s daughter recommending placement in a program operated by the Board of Cooperative Educational Services. Petitioner approved the recommendation on March 8, 2002. The CSE also determined that the student"s conduct in December 2001 was a manifestation of her disability.

On March 13, 2002, petitioner initiated this appeal from respondent"s February 12, 2002 decision to uphold the suspension imposed by its superintendent. On March 14, 2002, respondent"s superintendent wrote to petitioner noting the CSE"s determination to classify her daughter as a student with a disability and further noting the CSE"s manifestation determination. The letter stated, "although a determination of a July 19, 2001, meeting of the CSE concluded that [the student] did not qualify for classification as a student with a disability, the findings of the most recent meeting take precedence." Based upon those findings, the student"s suspension was revoked.

In her appeal, petitioner contends that respondent"s superintendent should have adjourned the disciplinary hearing and permitted the CSE to determine whether her daughter was a student with a disability and to conduct a manifestation determination prior to imposing any penalty. As relief, she seeks nullification of the suspension imposed by respondent and expungement of all references to the suspension from her daughter"s records. Respondent contends that the disciplinary hearing conducted by its superintendent was in all respects proper and that the findings of guilt and penalty imposed were supported by the hearing record at the time of the hearing determination and its review of the superintendent"s decision. Respondent asserts, however, that because subsequent events resulted in revocation of the suspension, the matter is moot.

The Commissioner of Education will consider only matters in actual controversy and will not render a decision on a state of facts which no longer exits or which subsequent events have laid to rest (Appeal of Schrader, 42 Ed Dept Rep ___, Decision No. 14,771; Appeal of E.F., 42 id. ___, Decision No. 14,762). The record clearly indicates that respondent revoked petitioner"s daughter"s suspension. In its verified answer to the petition, respondent states that all references to the suspension are expunged from the student"s records. Therefore, the relief sought by petitioner has been obtained and the matter is moot. To the extent petitioner seeks further declaration regarding the appropriateness of the superintendent"s conduct of the disciplinary hearing, such request at this juncture constitutes a request for an advisory opinion. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law "310 (Appeal of Hillhouse, 41 Ed Dept Rep ___, Decision No. 14,720; Appeal of Huber, 41 id. ___, Decision No. 14,676).