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Decision No. 15,794

Appeal of R.Y., on behalf of his son A.Y., from action of the Board of Education of the Cheektowaga-Sloan Union Free School District regarding student discipline.

Decision No. 15,794

(July 25, 2008)

Carol Rosenthal, Esq., attorney for petitioner

Jaeckle, Fleischmann & Mugel, LLP, attorneys for respondent, Matthew C. Van Vessem, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Cheektowaga-Sloan Union Free School District (“respondent” or “board”) relating to the discipline imposed on his son, A.Y.  The appeal must be dismissed.

On September 29, 2007, A.Y., a senior in respondent’s district, attended a homecoming dance in the high school gymnasium.  Respondent employed an off-duty police officer (“officer”) to ensure the safety and security of the students at the dance.  During the dance, the principal allegedly observed erratic behavior by students on the dance floor.  Also, the principal alleges that he spoke with A.Y., that the conversation was unusual and that A.Y.’s eyes were bloodshot.  Immediately thereafter, another teacher allegedly approached the principal and stated that many students complained about the strong smell of alcohol on the dance floor.

At the principal’s direction, the officer tested several students for alcohol consumption using a breathalizer.  Eight students, including petitioner’s son, tested positive for alcohol consumption.

By letter dated October 1, 2007, the principal notified petitioner that randomly sampled groups of students were screened for alcohol consumption at the homecoming dance on September 29, and that A.Y. tested positive and admitted to alcohol use.  The principal informed petitioner that A.Y. was suspended in-school for five days and from extra-curricular activities.

By letter dated, October 10, 2007, petitioner appealed to respondent.  Petitioner then participated in an informal conference with district representatives to discuss the situation.  By letter dated October 26, 2007, respondent upheld the principal’s determination and the penalty imposed.  This appeal ensued.

Petitioner challenges the administration of the breathalyzer test because it was conducted randomly and without parental consent.  Petitioner also challenges respondent’s release of his son’s name to a local newspaper as a participant in the alleged random testing.  Petitioner requests that the in-school suspension be removed from A.Y.’s permanent record and a determination that his son should not have been forced to submit to a random breath analyzer test on school property.

Respondent contends that the petition fails to state a cause of action because the alcohol test was not conducted randomly and petitioner’s son volunteered to take the test.  Respondent also alleges that the appeal is moot because an in-school suspension is not part of the student’s permanent record.  Respondent further claims that the appeal is untimely and that petitioner seeks an advisory opinion from the Commissioner.

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).  Here, the academic and extra-curricular suspensions have already been served and such suspensions are not part of petitioner’s permanent record.  Since petitioner has only requested that his son’s permanent record be expunged, the appeal is moot.

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