Decision No. 18,156
Appeal of K.U., on behalf of her child, from action of the Board of Education of the Suffern Central School District regarding student discipline.
Decision No. 18,156
(July 19, 2022)
Keane & Beane, P.C., attorneys for respondent, Suzanne Volpe, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Suffern Central School District (“respondent”) to impose discipline upon her child (“the student”). The appeal must be dismissed.
During the 2021-2022 school year, the student attended fourth grade in respondent’s district and received special education services pursuant to the Individuals with Disabilities Education Act (“IDEA”). On November 23, 2021, the student walked through the elementary school hallway holding a knife and approached two other students, resulting in disciplinary charges. By letter dated November 23, 2021, the elementary school principal suspended the student for five days and referred the student for a superintendent’s suspension hearing. By letter dated November 24, 2021, the superintendent scheduled a suspension hearing and manifestation determination review (“MDR”). Following the hearing, the student was found guilty of the charged conduct. The MDR team determined that the conduct was not a manifestation of the student’s disability.
By letter dated December 8, 2021, the superintendent notified petitioner that he determined the student was guilty of the disciplinary charges and suspended the student through June 24, 2022. The student was provided with one hour of alternative instruction per day. Petitioner appealed the suspension to respondent, which denied her appeal on February 11, 2022. This appeal ensued. Petitioner’s request for interim relief was granted in part.
Petitioner argues that the manifestation determination was arbitrary and capricious. Petitioner also argues that the suspension imposed on the student was arbitrary and capricious. Finally, petitioner argues that one hour per day of alternative instruction is inadequate.
Respondent argues that petitioner’s claims regarding the MDR and special education services are not properly before the Commissioner. Respondent denies that any aspect of the long-term suspension was improper. Finally, respondent argues that the alternative instruction provided to the student was appropriate.
First, I must address a procedural matter. Respondent objects to the scope of petitioner’s reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Petitioner’s challenge to the MDR team’s conclusion must be dismissed for lack of jurisdiction. The manifestation review process derives from IDEA (20 USC § 1415 [k]; 34 CFR 300.530-300.537; Honig v Doe, 484 US 305, 325, n 8 ; see also Education Law §§ 3214  [g]; 4404 ; 8 NYCRR Part 201). Thus, if a parent disagrees with the decision of an MDR team, she or he must appeal using IDEA’s due process procedures. This may take the form of an expedited impartial hearing before an impartial hearing officer (“IHO”) (20 USC § 1415 [k]  [A]; 34 CFR 300.532 [c]; 8 NYCRR 201.11 [a] -) or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations (see generally 34 CFR 300.152). An adverse determination of an IHO may be appealed to a State Review Officer pursuant to Education Law § 4404 (2). Therefore, petitioner’s challenge to the conclusion of the MDR team cannot be entertained in this forum (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,990).
Petitioner’s claims regarding the imposed penalty 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 that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 ). Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522). The student served the suspension and petitioner does not seek expungement from the student’s record. Accordingly, there is no meaningful relief that can be granted and any claims regarding the penalty imposed are moot (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,943; Appeal of T.W., 54 Ed Dept Rep, Decision No. 16,728).
Petitioner’s claims regarding alternative instruction are without merit. As indicated above, I granted petitioner’s request for interim relief, in part, to give the student a greater degree of alternative instruction than originally offered by the district. Although petitioner subsequently complained of the nature and quality of the instruction, I find that respondent acted promptly and reasonably to address petitioner and the student’s needs. Therefore, no compensatory relief is warranted.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Specifically, respondent was directed to provide the student with an alternative program of instruction in the amount of two hours per day pending an ultimate determination of the appeal.