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Decision No. 15,184

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parents, from action of the Board of Education of the Lakeland Central School District regarding student discipline.

Decision No. 15,184

(March 7, 2005)

Peter D. Hoffman, Esq., attorney for petitioners

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal a determination by the Board of Education of the Lakeland Central School District ("respondent") to suspend their son from school. The appeal must be dismissed.

On December 10, 2003, petitioners' son was involved in an incident at respondent's high school and was accused of physically attacking another student. A superintendent's hearing was held on January 6 and 14, 2004. Prior to the conclusion of the hearing, petitioners requested that the school district conduct a manifestation determination to ascertain whether their son's misconduct was related to a disability. Petitioners' request was denied and their son was found guilty of the charges against him. The hearing officer recommended that petitioners' son be suspended for the remainder of the 2003-2004 school year.

By letter dated January 23, 2004, respondent's superintendent affirmed the hearing officer's findings on guilt and penalty. Petitioners appealed to respondent. Respondent affirmed on March 4, 2004. Respondent's decision was mailed to petitioners on March 9, 2004 and received on March 10, 2004. This appeal ensued.

Petitioners contend that the decision to suspend their son was inappropriate and the penalty excessive. Petitioners contend that their son should have been afforded protection under the Individuals with Disabilities Education Act ("IDEA ") and that the hearing officer erred by refusing to permit a manifestation determination prior to imposing the penalty. Petitioners further allege that the decision to suspend their son was not based on substantial evidence and that the hearing officer failed to adequately consider the testimony of their psychologist. Petitioners also allege a number of procedural and evidentiary defects and maintain that the hearing officer was biased and incompetent. Petitioners request that their son's suspension be vacated or reduced, or that their son be placed in an alternative school setting.

Respondent asserts that the appeal is untimely and there was no notice of petition included with the pleadings. Respondent further asserts that petitioners' son was not entitled to a manifestation review prior to the conclusion of the superintendent's hearing. Respondent contends that the finding of guilt and penalty were proper.

A memorandum of law may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Smolen, 43 Ed Dept Rep 296, Decision No. 15,000; Appeal of T.M., 41 id. 443, Decision No. 14,740; Appeal of George, 40 id. 509, Decision No. 14,540). Petitioners offer new allegations and exhibits in their memorandum of law. Therefore, I have not considered the new exhibits or those portions of petitioners' memorandum of law that raise new arguments.

The appeal must be dismissed because petitioners failed to serve a notice of petition on respondent. The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer (8 NYCRR �275.11(a); Appeal of Hauk, 44 Ed Dept Rep 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570; Appeal of Heller, 38 id. 335, Decision No. 14,048). A petition that does not contain the language required by �275.11 is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Hauk, supra).

The appeal must also be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of C.D., 41 Ed Dept Rep 147, Decision No. 14,642; Appeal of Miller, 35 id. 451, Decision No. 13,598). Petitioners received respondent's determination on March 10, 2004. The 30-day period in which to file an appeal therefore expired no later than April 9, 2004. Although petitioners attempted to effectuate service on April 8, 12 and 19, none of the methods of service complied with the requirements of �275.8 of the Commissioner's regulations. Petitioners have the burden of proving service in compliance with the Commissioner's regulations (Appeal of Cauley, 33 Ed Dept Rep 359, Decision No. 13,077). Since proper service was not effectuated until April 21, 2004, and there being no good cause shown for petitioners' delay, the appeal must be dismissed as untimely.

The appeal must also be dismissed as moot. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts that no longer exists or that subsequent events have laid to rest (Appeal of P.F. and M.F., 42 Ed Dept Rep 390, Decision No. 14,890; Appeal of Lascala, 38 id. 16, Decision No. 13,974). Petitioners requested that their son's suspension be "vacated," but did not seek expungement of his records. Since the suspension has been served and petitioners' son has returned to school, no meaningful relief can be granted, and the appeal is moot (Appeal of V.L., 44 Ed Dept Rep ___, Decision No. 15,132; Appeal of D.W., 43 id. 188, Decision No. 14,965; Appeal of R.R. and K.R., 41 id. 405, Decision No. 14,726).

Nor do I find merit to petitioners' contention that their son was a student with a disability at the time of the incident. There is no evidence that a referral was ever made to respondent's Committee on Special Education ("CSE") pursuant to �200.4 of the Commissioner's regulations, or that the standard was met to deem the school district to have had knowledge that he was a student with a disability before the behavior that precipitated disciplinary action. Section 201.5(b)(1)-(4) of the Commissioner's regulations sets forth that a school district shall be deemed to have knowledge that a student had a disability if prior to the time the behavior occurred: (1) the parent of such student has expressed concern to school personnel in writing that the student is in need of special education; (2) the behavior or performance of the student demonstrates the need for special education; (3) the parent of the student has requested that an individual evaluation of the student be conducted; or (4) a teacher of the student, or other personnel of the school district, has expressed concern about the behavior or performance of the student to the director of special education or to other school district personnel. To theextent petitioners suspected after the incident that their son had a disability, they were entitled to make a referral to respondent's CSE. The record indicates that the student was referred to the CSE following the disciplinary hearing and the CSE determined that the student was not a student with a disability.

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