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Decision No. 16,214

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Mount Vernon regarding student discipline.

Decision No. 16,214

(March 31, 2011)

Student Advocacy, Inc., attorneys for petitioner, Edith Rosenbaum, Esq., of counsel

Aiello & Cannick, attorneys for respondents, Jennifer A. Arditi, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mount Vernon City School District (“respondent”) to uphold her son’s suspension from school.  The appeal must be dismissed.

During the 2009-2010 school year, petitioner’s son was a student with a disability (“student”) at respondent’s Mount Vernon High School (“school”).  On September 22, 2009, the student was suspended for, among other things, allegedly providing marijuana to students on the previous day.

A superintendent’s hearing was held on October 2, 2009, at which a hearing officer found the student guilty as charged.  On October 5, 2009, respondent’s Committee on Special Education (“CSE”) held a manifestation hearing and determined that the student’s conduct was not a manifestation of his disability.  Thereafter, the superintendent concurred with the hearing officer’s determination of guilt and suspended the student for the remainder of the 2009-2010 school year.  On October 30, 2009, petitioner appealed the suspension to respondent which, by letter dated December 4, 2009, upheld the superintendent’s decision.  This appeal ensued.  Petitioner initially requested interim relief, but subsequently withdrew the request.

Petitioner asserts that respondent’s determination was not supported by competent and substantial evidence and was arbitrary and capricious.  In addition, petitioner contends that four documents[1] she received, which describe the charges against her son, were defective in that they were “mutually contradictory and false.”  Petitioner’s request for relief in her petition demands that her son’s suspension be overturned and that I issue an order “directing that [her son] resume daily attendance at Mount Vernon High School with no further discipline.”

Respondent denies petitioner’s allegations and maintains that the suspension was based on competent and substantial evidence.  In addition, respondent contends that the petition fails to state a cause of action and is not verified.

I must first address several procedural matters.  Petitioner’s reply and memorandum of law seek relief not requested in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed petitioner’s reply and memorandum of law in this matter, I have not considered any new requests for relief (seee.g. Appeal of Jimerson, 39 Ed Dept Rep 558, Decision No. 14,310).

In addition, respondent contends that the petition that was served upon it did not contain the required verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition that was filed with my Office of Counsel included the required verification.  Therefore, dismissal on that basis is not warranted (seeAppeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of O.W. 43 id. 150, Decision No. 14,949).

However, 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).  As relief, the petition demands only reinstatement of the student to school and does not request expungement of his records.  Accordingly, since petitioner’s son already served the suspension, no further meaningful relief can be granted and the appeal must be dismissed.

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



[1] Petitioner refers to the four documents as “notices,” but respondent contends that only two of the documents were notices.