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Decision No. 17,943

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

Decision No. 17,943

(November 24, 2020)

Harris Beach PLLC, attorneys for respondent, Tracie L. Lopardi, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from a determination of the Board of Education of the Wellsville Central School District (“respondent”) to impose discipline upon her son (the “student”).  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  At all times herein, the student attended a special education program offered through the Cattaraugus-Allegany Board of Cooperative Educational Services (“BOCES”).

In a notice dated November 25, 2019, respondent’s superintendent charged the student with engaging in violent conduct on November 21, 2019 when he:  (1) “put his hands around the neck of a BOCES staff member and choked him”; and (2) “threw furniture and other items at staff members.”  The superintendent scheduled a long-term suspension hearing concerning these allegations for December 3, 2019.[1]

The hearing, presided over by a hearing officer, convened as scheduled.  At the hearing, petitioner admitted the charges on the student’s behalf and the hearing officer found the student guilty.  A manifestation team thereafter convened and determined that the student’s misconduct was not a manifestation of his disability.  The hearing officer then received evidence concerning penalty, including the student’s anecdotal record, and recommended that the student be suspended from school “for the remainder” of the 2019-2020 school year and “through the first marking period” of the 2020-2021 school year.  The superintendent subsequently adopted the hearing officer’s findings and recommendation in a letter dated December 5, 2019.  Petitioner appealed the student’s suspension to respondent on December 11, 2019. 

Thereafter, petitioner filed a complaint with the State Education Department dated December 16, 2019, alleging violations of the Individuals with Disabilities Act (IDEA) and State law/regulations (8 NYCRR §200.5[l]).  In the State complaint, petitioner alleged that the manifestation team erred in determining that the student’s conduct was not a manifestation of his disability and that the district failed to implement a behavior intervention plan for the student prior to the incident.  Petitioner and the district thereafter entered into a mediation agreement dated January 30, 2020 (see 8 NYCRR §200.5[h]).  This mediation agreement provided, among other things, that the district would develop a behavior intervention plan for the student and that the student’s suspension would end early on April 19, 2020.

Meanwhile, by letter dated January 8, 2020, respondent informed petitioner that it had denied her appeal on January 6, 2020.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 5, 2020.

Although petitioner purportedly appeals from respondent’s “denial of overturning the [s]uperintendent’s suspension,” she fails to set forth any arguments or requests for relief concerning the student’s suspension.  Instead, petitioner requests that the student’s individualized education program (“IEP”) “be updated” to include certain services and that “[h]arassment of [her] other children ... cease ....”

Respondent argues that the appeal must be dismissed for improper service and lack of jurisdiction.  Respondent further argues that the appeal is moot in light of the mediation agreement and that petitioner has not established an entitlement to the relief requested.

The appeal must be dismissed for lack of personal service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

In an affidavit, a part-time secretary employed by respondent avers that, on February 3, 2020, a woman “handed [her] an envelope that she said she was delivering for [petitioner] from Tops Market.”  According to the secretary, the woman said that “she did not know who was to receive the envelope,” which contained a copy of the petition in this matter.  The secretary indicates that she is not designated to accept service on behalf of the district, and petitioner did not submit a reply to respond to the secretary’s contentions.  Accordingly, I find that petitioner has not effectuated proper service upon respondent, and the appeal must be dismissed (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,670; Appeals of L.A. and V.A., 57 id., Decision No. 17,424; Application of a Student with a Disability, 57 id., Decision No. 17,391).

Even if respondent had been properly served in this matter, the appeal would be dismissed on procedural grounds.  First, to the extent petitioner seeks to modify the student’s IEP, claims brought to enforce rights arising under the IDEA must be addressed through the due process provisions of the IDEA (20 USC §1415) and Education Law §4404 or the State complaint procedure outlined in section 200.5 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, petitioner’s request for modification of the student’s IEP must be dismissed for lack of jurisdiction (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of a Student with a Disability, 40 id. 170, Decision No. 14,451).

Petitioner’s remaining request for relief must be dismissed for failure to state a claim.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself/herself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of C.P., 55 Ed Dept Rep, Decision No. 16,784; Appeal of Stepien, 48 id. 487, Decision No. 15,926).

Here, petitioner requests that “[h]arassment of [her] other children ... cease”; however, petitioner commenced this appeal solely on behalf of the student, and she has failed to identify her other children in the petition or elaborate as to the alleged harassment thereof.  Nor has petitioner identified any action taken by respondent concerning her other children, from which such a claim could arise.  Accordingly, even affording petitioner a liberal interpretation of 8 NYCRR §275.10, I find that she has failed to set forth a clear and concise statement of her claim concerning her other children, and this claim must be dismissed (Application of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,398; Application of a Student with a Disability, 57 id., Decision No. 17,391).

Finally, to the extent the petition could be interpreted as a challenge to the student’s suspension, 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’s request for interim relief was denied on March 5, 2020.  The student’s suspension, pursuant to the mediation agreement, ended shortly thereafter on April 20, 2020.  Petitioner does not seek expungement of the suspension from the student’s record and there is no meaningful relief that can be granted.  Accordingly, any claims regarding the student’s suspension are moot and must be dismissed (Appeal of T.W., 54 Ed Dept Rep, Decision No. 16,728; Appeal of a Student with a Disability, 52 id., Decision No. 16,375; Appeal of H.B., 49 id. 433, Decision No. 16,073, aff’d, sub nom Binder, et al. v. Cold Spring Harbor CSD, et al., Sup. Ct., Albany Co., [McGrath, J.], March 23, 2011). 

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




[1] The record reflects that the student was initially suspended for the November 21, 2019 incident for five days, from November 22, 2019 through December 5, 2019; however, the record does not include a copy of the notice for this short-term suspension.