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Decision No. 16,475

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. 16,475

(April 26, 2013)

Anthony M. Parlatore, Esq., attorney for petitioner Lamb & Barnosky, LLP, attorneys for respondent, Eugene R. Barnosky and Robert H. Cohen, Esqs., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Three Village Central School District (“respondent”) to uphold its superintendent’s decision to “suspend” her son from school. The appeal must be dismissed.

During the 2010-2011 school year, petitioner’s son, who has been diagnosed with Asperger’s Disorder, was a tenth grade student in respondent’s schools. The record reflects that on April 13, 2011, petitioner’s son was charged with possessing a weapon (a knife) and was suspended for a five-day period, beginning on April 14,2011.

On April 26, 2011, a superintendent’s hearing was held and petitioner’s son was found guilty of the charges against him. Thereafter, a manifestation meeting was conducted, and it was determined that the student’s conduct was a manifestation of his disability. By letter dated April 27, 2011, respondent’s superintendent advised petitioner of his findings and determination that her son was to “be suspended from school through June 10, 2011.”Petitioner appealed to respondent, which upheld the superintendent’s decision. Petitioner initiated this appeal by service of a notice and petition on June 8, 2011and included a request for interim relief. On June 13,2011, petitioner’s son returned to school, and petitioner’s request for a stay was considered moot.

Petitioner does not dispute that her son possessed a knife at school. Indeed, the petition contains no specific claims regarding the propriety of any of the district’s actions. Instead, in an attached May 6, 2011 letter to the board, with supporting documents, petitioner maintains that her son brought the knife to school because one of his teachers requested that props be brought to school for a class project dealing with Macbeth, and that her son, due to his disability and his literal interpretation of his teacher’s directive, thought that the knife would be a good prop for the play. Petitioner further asserted in the letter that she does not believe that a suspension of 45days is warranted solely because of the negative impact that it will have on his social, emotional and behavioral progress. As relief, petitioner seeks reversal of respondent’s determination to suspend her son.

Respondent acknowledges that petitioner’s son has a disability and that his conduct was deemed to be a manifestation of that disability. However, respondent contends that there is competent and substantial evidence to support the superintendent’s finding of guilt, tha tpetitioner’s son was properly placed in an interim alternative educational setting as a result of his conduct, and that the length of his removal from his classroom was appropriate and did not exceed the 45 days permitted by law.

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). Here, petitioner’s son returned to his regular school setting shortly after this appeal was commenced, and petitioner does not request expungement of her son’s records. Accordingly, no further relief can be granted, and the appeal must be dismissed as moot (Appeal of P.M.,51 Ed Dept Rep, Decision No. 16,337; Appeal of H.B., 49 id. 433, Decision No. 16,073; Appeal of B.J.F., 49 id. 282,Decision No. 16,026).

While the appeal is dismissed, one matter warrants comment. Generally, school districts may not remove students with disabilities from school for more than 10 school days absent a finding that the child’s behavior was not a manifestation of his or her disability (see generally20 USC §1415[k][1]; 34 CFR §300.530; Education Law §3214[3][g][3][iii]; 8 NYCRR §201.7). However, where a student’s behavior results in serious bodily injury, or involves weapons, illegal drugs or controlled substances, both federal and state law authorize a student’s removal to an appropriate interim alternative educational setting(“IAES”), as determined by a district’s committee on special education, for not more than 45 days (see 20 USC §1415[k]; 34 CFR §§300.530[g] and 300.531; Education Law§3214[3][g][3][iv]; 8 NYCRR §201.7[e]).

Although it appears that respondent exercised its authority to remove petitioner’s son to an IAES, rather than suspend him from instruction, the record is not entirely clear. Respondent contends in its answer and memorandum of law that it placed petitioner’s son in an IAES, and petitioner does not respond to or otherwise contest this assertion. However, I note that none of the documents submitted by the parties specifically refer to an IAES. This includes the April 27 letter from respondent’s superintendent which indicates only that petitioner’s son was to be “suspended” through June 10, 2011. While, on this record, petitioner has not carried her burden of proof and I cannot conclude that respondent acted improperly, I urge respondent to ensure that all decisions and communications issued in relation to disciplining a student with a disability clearly indicate compliance with Part 201of the Commissioner’s regulations, including appropriate references to such regulations.