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Decision No. 16,464

Appeal of a STUDENT WITH A DISABILITY,by his parent, from action of the Board of Education of the Three Village Central School District regarding student discipline.

Decision No. 16,464

(April 8, 2013)

Goldstein & Rodriguez, LLP, attorneys for petitioner, LaQuan M. London, Esq., of counsel

Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Three Village Central School District (“respondent”) to suspend her son, a student with a disability (“the student”),through the end of the 2011-2012 school year. The appeal must be dismissed.

During the 2011-2012 school year, petitioner’s son was a 12th grade student in respondent’s district who attended a Board of Cooperative Educational Services (“BOCES”) program as part of his education. On October 26, 2011, the student was questioned by respondent’s dean, Jacqueline Murolo (“Murolo”), regarding an exchange that occurred on the BOCES school bus a few days earlier. During that conversation, the student allegedly stated that he had been dealing marijuana to at least two male students on the BOCES bus and that he buys in bulk “$200-$300” dollars worth and about “three 1/8’s” of marijuana from another BOCES student and sells “two or three times a week on school grounds.” The student was searched and found to be in possession of “an electronic cigarette and $2,089 in his wallet, comprised mostly of one hundred dollar bills.”

By letter from the principal dated October 26, 2011,the student was suspended for five days (October 27 –November 2, 2011). A superintendent’s hearing was held on October 31, 2011. At the hearing, respondent’s only witness was Murolo, who testified to her conversation with the student. Based on this testimony, the student was found guilty of “dealing marijuana on the BOCES bus, purchasing marijuana and selling marijuana” on school grounds by the interim superintendent. A manifestation team meeting determined that the student’s actions were not a result of his disability. By letter dated October 31,2011, the interim superintendent notified petitioner that the student was suspended for the remainder of the 20112012 school year. This appeal ensued. Petitioner’s request for interim relief was denied on December 5, 2011.

Petitioner argues that the suspension was excessive and that respondent failed to provide a functional behavioral assessment as required under its code of conduct. Petitioner requests that the suspension be shortened or changed to a suspension from riding the BOCES bus.

Respondent asserts that the discipline imposed was not excessive and was supported by substantial and competent evidence. Respondent also asserts that petitioner failed to exhaust her administrative remedies because she did not appeal to the board of education.

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). The 2011-2012 school years has ended and Petitioner does not seek expungement of the student’s records in her petition. Furthermore, while the petition asserts that respondent failed to provide a functional behavioral assessment as required by its code of conduct and contains a number of allegations relating to the conduct of the manifestation meeting, the sole relief requested in the petition, other than a request for attorneys’ fees and costs, is that the suspension be reduced if not eliminated and stayed. Therefore, all of petitioner’s claims regarding the student’s suspension are moot (see Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,371).

The appeal must also be dismissed because petitioner failed to exhaust her administrative remedies. Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination. Accordingly, the decision of a superintendent to suspend a student in excess of five school days following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of R.A., 48 Ed Dept Rep426, Decision No. 15,903; Appeal of D.H., 47 id. 77, Decision No. 15,631). The record in this case reflects that petitioner did not request the board’s review of the interim superintendent’s determination. Petitioner appears to argue in her reply that the instant appeal, filed pursuant to Education Law §310, constituted an appeal to respondent board and further asserts in her memorandum of law that filing with the Commissioner “was mere surplus age and need not be addressed.” I disagree. The caption in this proceeding clearly names the board as respondent and petitioner specifically requests that I grant the relief requested therein. Therefore, the appeal must also be dismissed for failure to exhaust administrative remedies.

To the extent petitioner requests attorneys’ fees and costs the appeal must also be dismissed on jurisdictional grounds. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48id. 332, Decision No. 15,875).

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