Decision No. 13,267

(September 28, 1994)

Diane O'Hara Mendick, Esq., attorney for petitioner

David H. Brind, Esq., attorney for respondent

SHELDON, Acting Commissioner.--Petitioners appeal respondent's decision to bar their son, Benjamin, from the junior-senior prom. The appeal must be dismissed.

Benjamin was a junior attending respondent's Naples Central High School during the 1993-94 school year. On April 29, 1994, petitioners received a letter stating that Benjamin had failing grades in two courses. The letter further stated that unless Benjamin raised his failing grades by the end of that school week, school policy would preclude his participation in all extracurricular activities.

Benjamin failed to turn in three assignments in one course and, as a result, received three zeros for that week's performance. He also received a failing grade in the other course. Consequently, Benjamin was placed on the ineligibility list for the time period May 9-15, 1994. The junior-senior prom was scheduled for May 14, 1994. Petitioners and Benjamin met with respondent's eligibility committee on May 9, 1994 and with respondent on May 11, 1994. Both the committee and respondent deemed Benjamin ineligible to attend the prom. This appeal ensued.

Petitioners assert that respondent's policy is vague as to its application to attendance at a prom and that the policy is applied inconsistently. Respondent contends the appeal is moot. Respondent also maintains that petitioners were aware of the application of the policy and that the policy has been applied consistently.

Before addressing the merits, I will address procedural matters. A review of the record reveals that petitioners' reply papers contain new material which was not previously set forth in the petition and which does not respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Verity, 31 Ed Dept Rep 485; Matter of Pronin, 27 id. 203). Therefore, I will not consider the material belatedly added by petitioners' reply.

Since the prom has already taken place, the appeal must be dismissed as moot. It is well settled that the Commissioner of Education will determine only matters in actual controversy and will not ordinarily render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Langenmayr, 30 Ed Dept Rep 322; Appeal of Hmiel, 30 id. 86; Appeal of Graham, 29 id. 283).

Even though the appeal must be dismissed as moot, I also dismiss it on the merits. Respondent has the authority pursuant to Education Law '1709(2) and (3), to prescribe the course of study in its schools, which includes the authority to establish reasonable academic standards as a prerequisite for eligibility for participation in extracurricular activities (Appeal of Howard J., 31 Ed Dept Rep 381; Appeal of Kiely, 24 id. 138; Appeal of Clark, 21 id. 542). Furthermore, it is well established that suspension from extracurricular activities is an educationally sound disciplinary measure for a student who fails to maintain required academic standards, and the threat of such suspension is an incentive for a student to maintain those standards (Appeal of Howard J., supra; Matter of Kiely, supra; Matter of Clark, supra).

Moreover, petitioners supply no evidence that the policy has not been applied uniformly. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Parrish, 32 Ed Dept Rep 261; Appeal of Verity, supra; Appeal of Singh, 30 id. 284). Petitioners offer only conclusory statements of the inconsistent application of this policy. Petitioners allege specifically that four students, who were suspended from school, were allowed to perform community service to avoid an exclusion from extracurricular activities. They further contend that Benjamin was not afforded this same alternative. However, the record reflects that the four students to whom petitioners refer were suspended from school for disciplinary reasons and, unlike Benjamin, were not deemed ineligible due to academic performance. The policy to which petitioners refer states that disciplinary ineligibility is to be handled by the administration as compared to the eligibility committee. Therefore, because the situations are unrelated and petitioners have failed to present any evidence to support their claim, the appeal must be dismissed.

I have reviewed petitioners' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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