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Decision No. 15,269

Appeal of W.H., on behalf of her grandson B.W., from action of the Board of Education of the Queensbury Union Free School District and Brian F. Howard, Superintendent, regarding student discipline.

Decision No. 15,269

(August 5, 2005)

Poklemba, Hobbs, LLC, attorneys for petitioner, Gary C. Hobbs, Esq., of counsel

Bartlett, Pontiff, Stewart & Rhodes, PC, attorneys for respondents, Lawrence Paltrowitz, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the discipline of her grandson by the Board of Education of the Queensbury Union Free School District and its superintendent ("respondents"). The appeal must be dismissed.

During the 2004-2005 school year, petitioner's grandson was an eighth grade student at the Queensbury Middle School. On January 25, 2005, B.W. was in a study hall, drawing a picture. An aide observed B.W. drawing the picture, and asked him for it. In her affidavit, the aide describes the picture as "a drawing of an individual pointing a gun at another individual with a bullet flying toward the second individual's head." The aide took the drawing to the principal, who noted the violent nature of the drawing, and decided to search B.W.'s locker. There he found a number of notebooks which contained other drawings, many containing guns or knives, and sexually explicit material. Petitioner claims that the keeping of these notebooks was recommended by a mental health professional as a method of releasing B.W.'s anxiety and anger, rather than acting out his feelings.

The principal suspended B.W. from Tuesday, January 25, 2005, through Friday, January 28. On Thursday, January 27, Superintendent Howard sent a letter to B.W.'s father outlining certain charges, and scheduling a hearing for Monday, January 31, 2005.

According to the superintendent's affidavit, on January 27 B.W.'s father contacted him, and it was agreed that the hearing would be adjourned to Thursday, February 3, to allow B.W.'s father to obtain counsel. Thereafter petitioner retained counsel, who made contact with both the superintendent and the district's counsel, and by mutual agreement the superintendent's hearing was further adjourned to Monday, February 7.

In the interim, petitioner's counsel raised the question, based on a prior psychiatric examination done in 2004, whether B.W. should be considered a child who has not yet been determined eligible for special education and related services, but who could claim the protections found in 20 U.S.C.A. �1415(k)(8) (after amendment by Pub.L. 108-446, this provision is now �1415[k][5]). Upon considering this issue, according to the superintendent's affidavit, "the School District agreed to adjourn the Superintendent's Hearing indefinitely until such time as the Committee on Special Education had an opportunity to evaluate [B.W.] and determine whether he should be identified as a student with a disability." The district further agreed to allow B.W. to return school on Monday, February 7, with a tutor to aid him.

The record indicates that B.W. did not receive any alternative education from January 25 through Friday, February 4.

Petitioner asks that I issue a determination that the drawing done by B.W. in study hall did not justify the search of his locker, and did not justify a suspension under Education Law �3214. Petitioner further asks that I issue a determination that the keeping of a private notebook, for therapy purposes, does not violate Education Law �3214. Finally, petitioner asks that I issue a determination that respondent violated B.W.'s rights by not providing alternative education as required by Education Law �3214.

The appeal must be dismissed. With respect to the search of B.W.'s locker, which occurred on January 25, 2005, I find that this appeal, commenced March 3, 2005, is 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 O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).

With respect to B.W.'s suspension, I find that the appeal is moot. The original suspension was intended to run from January 25 through January 28. Through a series of communications involving B.W.'s father, petitioner's attorney, the superintendent, and the school district's counsel, the short-term suspension was continued while the superintendent's hearing originally scheduled for January 31 was adjourned, first to February 3, and then to February 7. In the course of agreeing to these adjournments, the parties also agreed that B.W. would remain out of school. B.W. returned to school on February 7, and there is no indication that he has not continued to be a student throughout the remainder of the school year.

The Commissioner will only decide 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 L.B., 43 Ed Dept Rep 159, Decision No. 14,952; Appeal of N.S., 42 id. 190, Decision No. 14,817). Because B.W. has already served his original suspension, no meaningful relief can now be granted, and petitioner's request for relief is moot (Appeal of Deborah F., 42 Ed Dept Rep 178, Decision No. 14,813; Appeal of R.R. and K.R., 41 id. 405, Decision No. 14,726).

I make no determination as to the applicability of 20 U.S.C.A. �1415(k)(8) or Education Law �3214(3)(g) on this record. Petitioner claims that the 2004 psychiatric evaluation was done at the school's request, but the district denies the same, and denies any knowledge of any possible psychological problems prior to February 3, 2005. The superintendent's affidavit indicates that upon receiving such a claim from petitioner's counsel, the district agreed to adjourn the superintendent's hearing indefinitely "until such time as the Committee on Special Education had an opportunity to evaluate [B.W.] and determine whether he should be identified as a student with a disability." Respondents also argue that they cannot be charged with knowledge of possible disability because the notice requirements of �1415(k)(8)(B) have not been met.

The record does not indicate that either the CSE or the superintendent has ever made any determination with respect to this issue. Because there has been no such determination, there has been no superintendent's hearing, and there has been no determination with respect to a long-term suspension by the superintendent which would be appealable to the board of education in this matter. This portion of the appeal is therefore premature. If and when such determinations are made in the future, petitioner may commence an appeal at the proper time.

Although I am dismissing the appeal on procedural grounds, I must address certain issues involving B.W.'s 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 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). In this record, there is no indication that B.W. received any alternative education while he was out of school, although it appears that he was given a tutor upon his return to school to help catch up on the work that he had missed. This is entirely inadequate, and I remind respondents of their obligation to provide prompt alternative education in the future.

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