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Decision No. 14,813

Appeal of DEBORAH F., on behalf of her son DOUGLAS, from action of the Board of Education of the South Colonie Central School District regarding student discipline.

Decision No. 14,813

(October 18, 2002)

O"Connell and Aronowitz, attorneys for petitioner, Robert T. Fullem, Esq., of counsel

Tabner, Ryan and Keniry, attorneys for respondent, William F. Ryan, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, Douglas, by the Board of Education of the South Colonie Central School District ("respondent"). The appeal must be dismissed.

During the 2001-2002 school year, petitioner"s son, Douglas, was a seventh grade student in respondent"s district. On November 6, 2001, another student brought two knives to school, unknown to petitioner"s son. After receiving information that the student was in possession of a knife, school officials removed the student from the cafeteria for questioning and searched his locker. Although no knives were found in the student"s locker, he had apparently hidden several knives on his person which were undetected by school officials.

When the student returned to the cafeteria, Douglas offered to take the knives and dispose of them, in order to protect the other student. He took two knives from the other student, hid them in his socks, and went to his next scheduled class.

Before he could dispose of the knives, Douglas was questioned by the associate principal. Although he first denied having any knives, Douglas eventually turned the knives over to the associate principal after the associate principal threatened to call the police.

By letter dated November 6, 2001, Douglas was suspended from November 7 through November 14. A hearing pursuant to Education Law "3214 was originally scheduled for November 14, but was adjourned at petitioner"s request. On November 30, a pre-hearing conference was held, and the hearing itself was held on December 18, 2001. The attorneys for the parties entered a stipulation into the record that covered all the relevant facts, and indicated that Douglas had offered to take two knives from the other student, and that he possessed the knives for a period of somewhat less than one hour.

By letter dated December 20, 2001, respondent"s superintendent found Douglas guilty of possessing two knives for approximately one hour, during which time he had several opportunities to turn them over to a teacher or other school authority. He also found that Douglas had originally misled the associate principal regarding the knives, and that it was only after the threat of police intervention that he admitted his involvement. The superintendent further determined that Douglas would be suspended from school for the balance of the 2001-2002 school year, ending June 25, 2002.

By letter dated January 17, 2002, petitioner"s counsel was informed that the board of education had affirmed the superintendent"s determination at its meeting on January 15, 2002.

This appeal was commenced on February 14, 2002. The petition requested interim relief staying the suspension, and permitting Douglas to attend the Sand Creek Middle School pending a determination on the merits. Interim relief was denied March 5, 2002.

Petitioner does not challenge the determination that her son possessed two knives in school. She does challenge the suspension of her son for the remainder of the school year as arbitrary, capricious, irrational and unreasonable.

The appeal must be dismissed as 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. Here, petitioner"s son has served his suspension, which terminated on June 25, 2002 (Appeal of R.R. and K.R., 41 Ed Dept Rep ____, Decision No. 14,726, May 20, 2002; Appeal of Mace, 40 id. 110, Decision No. 14,433; Appeal of Camille S. 39 id. 574, Decision No. 14,316).

Although I am dismissing the appeal as moot, I must address certain issues involving Douglas" alternative education. It is well established that alternative education must begin promptly after the suspension begins. Education Law "3214(3)(e) provides that where a student has been suspended, "immediate steps" shall be taken for his or her attendance upon instruction. The term "immediate" does not mean instantaneously, but it does mean that a school district must act promptly (Appeal of Benkelman, 34 Ed Dept Rep 250, Decision No. 13,299). The alternative instruction provided must be substantially equivalent to that received by the student prior to the suspension (Appeal of Watts, 23 id. 459, Decision No. 11,282), and equivalency will be determined on a case-by-case basis (Appeal of Camille S., supra). In this matter, the parties differ as to certain aspects of the alternative education provided to Douglas. However, there is no indication in the record that Douglas has not successfully completed the seventh grade and advanced to the eighth grade. Nevertheless, I remind respondent of its obligation to provide prompt alternative education in the future.

In light of this disposition, I need not address the parties" remaining contentions.