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Decision No. 15,509

Appeal of R.J.M., on behalf of her son M.M., from action of the Board of Education of the City School District of the City of North Tonawanda and Lisa A. Colburn, Director of Guidance, regarding instruction.

Decision No. 15,509

(December 22, 2006)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of North Tonawanda (“the board”) and its director of guidance (collectively referred to as “respondents”) in providing instruction to M.M. at home during the 2005-2006 school year and the 2006 summer session.  The appeal must be dismissed.

M.M. received home teaching from the district during the 2005-2006 school year, commencing in December 2005.  Initially, petitioner’s request for home teaching was approved for a period of 30 days from December 6, 2005 through January 25, 2006 and extended on a monthly basis through the end of the 2005-2006 school year, contingent upon medical documentation of need.  However, services were interrupted in April 2006 while respondents attempted to confirm the credentials of the individual providing medical documentation of need for the extension.  Another temporary interruption occurred in May 2006 when the district attempted to provide the instruction at a community location.

 By letter dated June 27, 2006, the director of guidance informed petitioner that the agreed upon transition plan for M.M. required his attendance at the high school for the 2006 summer session.  The letter also confirmed that M.M. was provided the opportunity to take his examinations at the end of the 2005-2006 school year. Petitioner commenced this appeal on July 14, 2006.  On July 21, 2006, petitioner’s request for interim relief was denied.

Petitioner contends that M.M. was not provided all the instruction he should have received during the 2005-2006 school year.  Petitioner seeks an order directing respondents to provide additional instruction at home during the summer of 2006, including an opportunity to take local and Regents examinations.  Petitioner also requests that M.M. be promoted to 10th grade based on his third quarter performance prior to completion of the spring 2006 term.  Additionally, petitioner requests that M.M.’s records be forever sealed unless requested by petitioner or subpoenaed by a court of competent jurisdiction.

Respondents contend that M.M. was provided the opportunity to regularly attend classes and complete his final examinations and was also provided home teaching when medical justification was provided pursuant to board policy.  Respondents also contend that petitioner failed to exhaust her administrative remedies because board policy 3230 requires a parent to appeal to the superintendent of schools and if not satisfied, directly to the board prior to commencing an appeal to the Commissioner.  Finally, respondents argue that the appeal is moot.

The appeal must 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).  The 2005-2006 school year and 2006 summer session have ended and M.M. has resumed regular attendance at respondent’s high school.  Since no further meaningful relief can be granted regarding the instruction provided during the previous school year, petitioner’s claims for relief in this regard are moot.

With regard to petitioner’s request for an order sealing M.M.’s educational records, the maintenance and access to such records are governed by the Family Educational Rights and Privacy Act (FERPA).  The Commissioner lacks jurisdiction to consider FERPA claims.   The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Application of T.D., 41 Ed Dept Rep 157, Decision No. 14,646; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of Tucker, 39 id. 824, Decision No. 14,393).