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Decision No. 16,949

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 Rochester regarding student discipline.

Decision No. 16,949

(August 18, 2016)

Charles G. Johnson, General Counsel, attorney for respondent, Cara M. Briggs, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the suspension of her son, a student with a disability ("the student"), by the Board of Education of the Rochester City School District ("respondent").  The appeal must be dismissed.

During the 2015-2016 school year, the student attended ninth grade in respondent's district.  The record reflects that, on December 9, 2015, the student was involved in a physical altercation with several individuals, resulting in the student's suspension.  As a result of this incident, by letter dated December 11, 2015, the high school principal notified petitioner of her son’s suspension.  The letter further stated that the student was charged with "Assault with Physical Injury," and that the matter was referred to respondent's superintendent for a “long-term suspension." In a subsequent notice, dated December 15, 2015, respondent's superintendent notified petitioner that the student was charged with assaulting another student and causing physical injuries as a result of the December 9, 2015 altercation.  The superintendent notified petitioner that a hearing would be held on December 17, 2015, and explained the parent's rights in connection therewith.

On December 17, 2015, a superintendent's hearing was conducted and, based on the evidence presented, the hearing officer found that the student engaged in the alleged conduct and was guilty of the charge against him.  In addition, the record reflects that respondent's committee on special education ("CSE"), acting as a manifestation team, met the same day and determined that the actions of petitioner's son were not a manifestation of his disability.  On December 22, 2015, respondent's superintendent adopted the hearing officer’s findings of fact, found the student guilty of the charge against him and suspended him for 45 school days, during which period the student was assigned to attend school at an alternative academic placement.  By letter dated January 5, 2016, the superintendent notified petitioner that the original charge against her son was revised to reflect that the student "engaged in a physical altercation at dismissal from which injuries resulted."

On January 5, 2016, petitioner filed an appeal of her son’s 45-day suspension with respondent.  Prior to receipt of a determination by respondent, petitioner also commenced this appeal.

On February 12, 2016, respondent reversed the superintendent's decision and expunged the suspension from the student's record.  Respondent noted that the student was currently receiving home instruction and that this would continue until an alternative educational program could be identified and agreed upon by petitioner and it’s CSE.  Respondent's counsel, thereafter, submitted an affidavit in this appeal dated March 2, 2016, confirming that respondent had expunged the suspension from the student's record.

Petitioner asserts that her son’s suspension was inappropriate because he was not the aggressor in the altercation.  Petitioner also asserts that her son notified school staff of several of his classmates' intent to initiate a physical altercation prior to the incident itself.  Petitioner contends that the alternate school to which the student was assigned during the suspension would be unable to adequately provide for his individual needs.

Petitioner seeks an order reversing the 45-day suspension imposed by the superintendent and directing the district to implement the student’s individualized education program ("IEP") and meet his needs. Petitioner also seeks expungement of the 45-day suspension from the student’s record.

Respondent contends, among other things, that the appeal should be dismissed as premature because, at the time it was filed, respondent had not yet issued a decision with respect to petitioner's appeal.  Respondent further argues that the instant appeal is now moot as a result of respondent's February 12, 2016 determination reversing the student’s 45-day suspension and expunging it from the student's record. Respondent further alleges that petitioner has failed to exhaust her administrative remedies and also that petitioner was not denied any statutory or constitutional rights.

Petitioner’s challenge to her son’s suspension is, at this juncture, academic.  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 record reflects that the student was suspended for 45 days after a superintendent's hearing on December 17, 2015.  Before receiving respondent's final determination with respect to petitioner's appeal, petitioner commenced this appeal, seeking reversal of the suspension and expungement of any reference to it in the student's records.  However, on February 12, 2016, respondent reversed the superintendent’s decision and expunged the student's suspension.  Therefore, because the relief petitioner seeks regarding the suspension has already been obtained, that part of her appeal is moot, warranting dismissal.

Petitioner also disputes the CSE's determination that the student's actions on December 9, 2015 were not a manifestation of his disability.  Petitioner further alleges that the student "was denied access to ... educational services,” including home tutoring and counseling, as of December 17, 2015.  These claims must be dismissed for lack of jurisdiction.

The Individuals with Disabilities Education Act (“IDEA”) and Education Law, Article 89 provide parents with the right to an impartial hearing regarding a complaint with respect to any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education (“FAPE”) to such child (20 USC §1415; Education Law §4404[1]).  Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC §1415), Education Law §4404 and §200.5(j) of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).  Therefore, to the extent that these issues are raised in this appeal, they are dismissed for lack of jurisdiction.

In light of the above determination, I need not address the parties' remaining contentions.