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Decision No. 16,179

Appeal of a STUDENT WITH A DISABLITY, by his parent, from action of the Board of Education of the Hyde Park Central School District regarding student discipline.

Decision No. 16,179

(December 9, 2010)

McMahon Advocacy Group, attorneys for petitioner, Gilbert K. McMahon, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Semira Ansari, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hyde Park Central School District (“respondent” or “board”) to uphold the suspension of her son.  The appeal must be dismissed.

At a superintendent’s hearing on June 16, 2010, petitioner’s son admitted that he possessed marijuana, a homemade marijuana pipe and a lighter in the boys’ locker room at respondent’s Haviland Middle School on June 3, 2010.  Because petitioner’s son is a classified student, a manifestation determination review was held, at which it was determined that there was no connection between his actions and his disability.  Thereafter, the hearing officer recommended that petitioner’s son be suspended for the remainder of the 2009-2010 school year through November 28, 2010.  By letter dated June 17, 2010, the acting superintendent of schools notified petitioner that she accepted the hearing officer’s finding of guilt and penalty recommendation.  Petitioner appealed to respondent, which affirmed the acting superintendent’s determination at its August 12, 2010 meeting.  This appeal ensued.

Petitioner alleges that respondent violated her rights to due process by excluding her and her attorney from the board’s review of her appeal during its August 12, 2010 meeting.  She contends that respondent invited non-board members, specifically members of respondent’s committee on special education (CSE), to provide information during the board’s executive session.  Petitioner requests that her son’s suspension be set aside.

Respondent denies that petitioner’s due process rights were violated and asserts that the Education Law does not entitle a parent or counsel to appear before or attend a board meeting when seeking an appeal of a superintendent’s decision.  Respondent asserts further that the only non-board member present during the executive session on August 12, 2010 was respondent’s deputy clerk, who was authorized to attend pursuant to the Education Law and the Public Officer’s Law, and who was excused prior to the board’s deliberation.  Respondent contends that petitioner has failed to meet her burden of proof and that the Commissioner lacks jurisdiction over alleged violations of the Open Meetings Law.

Initially, I must address petitioner’s reply.  Section 275.8 of the Commissioner’s regulations requires a party to serve all pleadings and papers subsequent to the petition on the adverse party’s counsel.  Petitioner’s affidavit of service for the reply indicates that it was mailed only to respondent, not to its counsel.  Accordingly, I will not consider it.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner does not request expungement of her son’s records.  Since petitioner’s son has served the suspension, no further meaningful relief can be granted and the appeal must be dismissed as moot (Appeal of A.B., 50 Ed Dept Rep ___, Decision No. 16,147; Appeal of C.A., 48 id. 340, Decision No. 15,878; Appeal of C.A., Sr., 45 id. 388, Decision No. 15,360).

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