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Decision No. 15,683

Appeal of DEBORAH J. FIELD, on behalf of her son DAVID, from action of the Board of Education of the City School District of the City of Elmira, the Schuyler-Steuben-Chemung-Tioga-Allegany Board of Cooperative Educational Services and/or their staff regarding an attendance policy.

Decision No. 15,683

(November 6, 2007)

John J. Ryan, Jr., Esq., attorney for the Board of Education of the City School District of the City of Elmira

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for the Greater Southern Tier Board of Cooperative Educational Services, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Greater Southern Tier Board of Cooperative Educational Services (“GST BOCES”) that her son, David, a resident of the City School District of the City of Elmira (“Elmira”), is not eligible to continue to attend a General Educational Development (“GED”) program.  The appeal must be dismissed.

On September 12, 2006, petitioner’s son, David, then a 17-year old student, transferred to the GST BOCES.  David’s enrollment with GST BOCES consisted of a morning session containing GED-related instruction and an afternoon vocational component.  On November 30, 2006, David sought approval from Elmira to seek part-time employment instead of attending the afternoon GST BOCES session and approval was granted.  Elmira’s compulsory education policy requires students who are not employed to attend full-day instruction until the last day of the session in which the student becomes 17 years of age.  As of January 8, 2007, David was absent from the GST BOCES GED Program 20 consecutive instructional days, but had not secured employment.

On January 9, 2007, David returned to the GED program.  On January 11, 2007, petitioner was notified by GST BOCES that her son would no longer be allowed to attend the GED program because he was no longer enrolled in the occupational education program.  The notification indicated that David could return to the GED program if he met with his counselor and resolved these issues.  This appeal ensued. Petitioner’s request for interim relief was denied on February 21, 2007.  David re-enrolled in Elmira on March 5, 2007.

Petitioner argues that David’s absences were not unexcused and that respondents have violated Education Law §3202(1-a).  Petitioner seeks a determination that failure to secure part-time employment is not a proper reason to drop a student from his program.

Respondent Elmira claims that it is not a necessary party because David transferred out of the district on September 12, 2006, that the appeal is not ripe because Elmira has never denied David enrollment, that the request for relief is advisory in nature, that Education Law §3202(1-a) is not applicable to David’s situation and that the appeal is untimely.  Respondent GST BOCES claims that pursuant to State Education Department guidance, David was properly expelled from his program because he had unexcused absences for 20 consecutive days.  GST BOCES also argues that David is free to re-enroll and has not yet done so.

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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  In addition, the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Fioretti, 45 Ed Dept Rep 188, Decision No. 15,297; Appeal of Lombardo, 44 id. 167, Decision No. 15,135; Appeals of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805).

In her petition, petitioner requested interim relief allowing David to return to the GED program, which was denied, and a determination that failure to secure part-time employment is not a legal basis for dropping a student from enrollment.  In her reply to Elmira’s answer, petitioner withdraws her request for relief and apologizes for requesting a declaratory ruling or advisory opinion.

There is no meaningful relief that can be granted at this time.  The January 11, 2007 communication from GST BOCES indicated that if David met with his counselor to resolve the program requirement issues, he could return to the GED program.  In March 2007, David re-enrolled in Elmira.

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