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Decision No. 18,256

Appeal of A.W., on behalf of his child, from action of the Board of Education of the Baldwin Union Free School District regarding student discipline.

Decision No. 18,256

(March 22, 2023)

Ingerman Smith, LLP, attorneys for respondent, Matthew Guerra, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Baldwin Union Free School District (“respondent”) to suspend his child (the “student”).  The appeal must be dismissed. 

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  The student attended eighth grade in respondent’s middle school during the 2021-2022 school year.  On March 15, 2022, the student entered an instructional space, without permission, where a conflict between students ensued.  Respondent alleges that, at some point, the student possessed an eight-inch kitchen knife, which he later concealed on school property.  Respondent convened a long-term suspension hearing in connection with this conduct.

At the conclusion of the hearing, the hearing officer found the student guilty of the charges and recommended a one-year suspension based upon the student’s actions and disciplinary history.  The superintendent adopted these findings and recommendations, but allowed the student to return to school in September 2022 if he met four specified conditions.  One was the completion of weekly counseling sessions “by a licensed mental health professional,” accompanied by a requirement that petitioner “provide a signed release” so a school psychologist could “speak with the ... mental health care provider.”  This appeal ensued.  Petitioner’s request for interim relief was denied on May 5, 2022.

Petitioner challenges the excessiveness of respondent’s penalty and the counseling component of the early reinstatement option.  Petitioner requests that the student be immediately returned to school.

Respondent contends that petitioner failed to exhaust administrative remedies.  On the merits, respondent contends that the criteria delineated in the superintendent’s determination is not mandatory or required as a condition of the student’s suspension, and the student will be permitted to re-attend school March 16, 2023, regardless of whether such criteria are met.  Additionally, respondent contends that the penalty imposed is proportionate to the severity of the student’s infraction.

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 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 [1980]).  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 imposed suspension ended on March 16, 2023.  Additionally, petitioner does not seek expungement of the suspension 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 K.U., 62 Ed Dept Rep, Decision No. 18,156; Appeal of a Student with a Disability, 60 id., Decision No. 17,943; Appeal of T.W., 54 id., Decision No. 16,728).

I am compelled, however, to comment on the nature of the counseling option offered to petitioner.  Since 2006, school districts have had the discretion to offer students an “early return to school” based upon their “voluntary participation in counseling” (Education Law § 3214 [3] [e], as amended by Chapter 170 of the Laws of 2006).  While respondent indicates that it “provided a referral list to petitioner of mental health providers [who] offer[ed] affordable and/or free services,” petitioner nevertheless asserts that obtaining these counseling services “created a financial hardship” for his family.  Requiring a parent to secure and pay for such services raises substantial equity concerns.  As such, school districts must ensure that a cost-free option—including direct delivery by school personnel—is available to families under such circumstances.[1]

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




[1] The State Education Department (SED) previously expressed such concerns in connection with the passage of Chapter 170 of the Laws of 2006.  The bill jacket for this legislation contains a letter from the Senate sponsor, James S. Alesi, indicating that SED “voiced ... concerns over whether instituting conditional suspensions would favor wealthier students over ... less fortunate students.”  Senator Alesi indicated that he “ha[d] been assured by the school administrators in [his] district that this would not be a problem since ... in-school counseling services would be made available for such a purpose.”