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Decision No. 15,588

Appeals of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the New York City Department of Education regarding transportation.

Decision No. 15,588

(June 4, 2007)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner challenges the determination of the New York City Department of Education (“respondent”) that his son is not entitled to transportation for the 2005-2006 school year.  Since both appeals involve the same parties, seek the same relief and involve similar issues of fact and law, they have been consolidated for decision.  The appeals must be dismissed.

Petitioner’s son suffers from asthma and a slight hearing loss.  Respondent had denied petitioner’s request for a full-fare Metro Card stating that petitioner’s son’s medical conditions were not severe enough to warrant an accommodation of round-trip transportation pursuant to §504 of the Rehabilitation Act of 1973 (“§504”, 29 USC §794) or the Americans with Disabilities Act (“ADA”, 42 USC §§12101-12134).  On April 12 and 14, 2005, a hearing was held, and on May 11, 2005, an Impartial Hearing Officer (“IHO”) rendered a decision on behalf of respondent.  

Petitioner also requested that respondent provide his son a full-fare Metro Card because the walk was allegedly unsafe.  By letter dated March 15, 2005, respondent denied petitioner’s request.

Petitioner contends that his son is a student with a disability who requires transportation as a reasonable accommodation.  Additionally, petitioner disputes respondent’s finding that the walk is not unsafe.

Respondent contends that on December 16, 2005 it provided petitioner’s son with a full-fare Metro Card effective through mid-April 2006 and that the appeals are therefore moot. Respondent further asserts that I lack jurisdiction with respect to petitioner’s claims under the ADA and §504.

The appeals 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).  In this matter, respondent provided the relief sought through mid-April 2006, and the 2005-2006 school year is over.  Therefore, petitioner’s appeals are moot.

Also, to the extent that petitioner is seeking redress of the IHO’s May 11, 2005 decision, the appeals must be dismissed for lack of jurisdiction.  An appeal to the Commissioner is not the proper forum in which to raise alleged violations of the ADA (Appeal of Mogel, 41 Ed Dept. Rep. 127, Decision No. 14,636; Appeal of Cochran et al., 35 id. 555, Decision No. 13,631).  Additionally, enforcement of §504 lies with the federal courts, the U.S. Department of Justice and the U.S. Department of Education (Appeal of A Student Suspected of Having a Disability, 43 Ed Dept Rep. 487, Decision No. 15,061; Appeal of A Student With a Disability, 39 id. 752, Decision No. 14,369)

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