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Decision No. 15,335

Appeal of T.R., on behalf of her son E.T., from action of the Board of Education of the William Floyd Union Free School District regarding student discipline.

Decision No. 15,335

(December 21, 2005)

Joseph C. Stroble, Esq., attorney for petitioner

Bond, Schoeneck & King, PLLC, attorneys for respondent, Howard M. Miller, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals her son's five-day suspension from the William Floyd Union Free School District ("respondent"). The appeal must be dismissed.

During the 2003-2004 school year, petitioner's son was enrolled in respondent' s high school. On March 8, 2004, he was involved in a physical altercation with another student at school. Three assistant principals directed the students to stop fighting. When the students disregarded this directive, the administrators and school security personnel physically separated and restrained them. Immediately after the incident, the principal suspended petitioner's son from school on March 9, 10, 11, 12, and 15. An assistant principal notified petitioner of the suspension. Petitioner declined hand-delivery of the written notice of suspension.

The principal and assistant principal met with petitioner on March 30, 2004. At that time, the principal maintained that his suspension of petitioner's son was proper. Petitioner's attorney then requested that respondent's superintendent review the principal's decision, provide a copy of the school's surveillance videotape, and expunge the student's record. By letter dated April 16, 2004, respondent's attorney advised petitioner that she could view the videotape and could commence an appeal to the Commissioner without further review of the principal's suspension at the district level. This appeal ensued. Petitioner's request for interim relief was denied on June 28, 2004.

Petitioner does not dispute that her son was involved in the fight, but maintains that he acted in self-defense and asks that I obtain and review the videotape of the incident. Petitioner also contends that she did not receive written notification of the suspension before its imposition.

Respondent contends that the appeal must be dismissed because it is moot and untimely.  As to the merits, respondent contends that the petition lacks supporting evidence.

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). Petitioner's son was suspended on March 8, 2004, and the informal conference with the principal took place on March 30, 2004. By letter dated April 16, 2004, respondent's attorney notified petitioner that respondent would not review the matter. Although petitioner attempted to commence this appeal on April 26, 2004 by serving a petition by certified mail, she did not personally serve respondent in accordance with the Commissioner's regulations until May 27, 2004. Under these facts, and in the absence of any unusual circumstances, petitioner's ineffectual attempt to commence an appeal does not excuse her failure to commence this proceeding in a timely fashion (seeAppeal of R.A. and D.A., 43 Ed Dept Rep 281, Decision No. 14,995; Appeal of R.F., 43 id. 206, Decision No. 14,972; Appeal of Cushman, 42 id. 116, Decision No. 14,793).

The appeal must also be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). Since petitioner's son has already served his suspension and petitioner does not request expungement, the appeal is moot.

While I am constrained to dismiss this appeal on procedural grounds, I remind the district of its obligation to comply with Education Law �3214 and �100.2(l)(4) of the Commissioner' s regulations. Although the assistant principal states that petitioner declined hand-delivery of the written notice of suspension, petitioner denies receiving written notice by any means at the time of the incident.  Further, because respondent does not allege that the student's presence in school posed a continuing danger or threat, the principal was obligated to provide the notice and opportunity for an informal conference before suspending the student (Education Law �3214[3][b][1] and 8 NYCRR �100.2[l][4]).

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