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Decision No. 15,808

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Hoosic Valley Central School District regarding student discipline.

Decision No. 15,808

(August 1, 2008)

Whiteman, Osterman & Hanna, LLP, attorneys for respondent, Sarah K. Delaney, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her daughter, a student with a disability (hereinafter “student”), by the Board of Education of the Hoosic Valley Central School District (“respondent”).  The appeal must be dismissed.

During the 2006-2007 school year, the student attended respondent’s high school.  On October 20, 2006, the student was charged with writing a bomb threat on a stall in the girls’ lavatory.  The student was suspended for a five-day period which commenced on October 20, 2006.

A superintendent’s hearing was held on November 16, 2006 and the hearing officer found the student guilty.  Respondent’s Committee on Special Education (“CSE”) held a manifestation hearing and determined that the student’s conduct was not a manifestation of the student’s disability.  The superintendent concurred with the hearing officer’s determination and by letter dated November 21, 2006, suspended the student for the remainder of the 2006-2007 school year.  The student was also restricted from attending any school functions and was not authorized to be on school property without the principal’s permission.  Petitioner appealed the suspension to respondent which upheld the superintendent’s determination.  This appeal ensued.

Petitioner argues that the determination is not supported by credible evidence, that the discipline imposed was excessive and that respondent failed to provide her with an audio transcript of the superintendent’s hearing.  Further, petitioner claims that the district failed to provide a free appropriate public education (“FAPE”) to the student by failing to provide the services required by her Individualized Education Program (“IEP”). 

Respondent maintains that the finding of guilt was based on competent and substantial evidence and should not be disturbed.  Respondent further asserts that the discipline imposed was not excessive but was based on the level of disruption caused by the student’s threat and was also intended to deter future bomb threats.

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 2006-2007 school year has ended, the student served the suspension and petitioner received the tapes of the hearings.  Petitioner does not seek expungement of the student’s records.  Therefore, petitioner’s claims regarding the student’s suspension are moot.

Finally, petitioner’s claims concerning the implementation of the student’s IEP and the alleged denial of FAPE must be dismissed on jurisdictional grounds.  The proper avenue of redress of such claims is to request an impartial hearing (Appeal of a Student with a Disability, 46 Ed Dept Rep 101, Decision No. 15,453).  If a party disagrees with the decision of an Impartial Hearing Officer they may appeal that decision to the State Review Officer pursuant to Education Law §4404(2).