Decision No. 14,243

(November 2, 1999)

MILLS, Commissioner.--On behalf of her son who attends school in the Lawrence Union Free School District, petitioner challenges the refusal of the Board of Education ("respondent") to permit her son to continue participating in the district's gifted and talented program (the "program") for the 1998-99 school year. The appeal must be dismissed.

Petitioner's son participated in the district's program during the 1997-98 school year. On June 16, 1998, respondent revised the procedures and criteria for eligibility in the program. Respondent adopted the new procedures and criteria as a result of a prior agreement between respondent and the United States Department of Education, Office for Civil Rights. As part of the newly adopted procedures and criteria, students were screened annually to determine whether they would continue to participate in the program during the next school year.

In September 1998, respondent notified petitioner that her son was not eligible to participate in the program during the 1998-99 school year. Petitioner appealed this determination to respondent. Respondent denied her request, and this appeal ensued.

Petitioner challenges the adequacy of the notice provided prior to the removal of her son from the program. She also claims that the newly adopted criteria are subjective, and were not fairly and consistently applied to all students.

Respondent asserts that the appeal is untimely, that the matter is moot, that the revised procedures and criteria adopted at its June 16, 1998 meeting are valid and appropriate and have been implemented properly. Finally, respondent claims that petitioner's son had never been officially admitted to the gifted and talented program, but had participated only on "visitor" status. Therefore, respondent argues petitioner's son was not, in fact, removed from the program in September 1998, as petitioner claims.

I will first address the procedural defenses raised by respondent. Respondent asserts that the appeal is untimely. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be commenced within thirty days of the action or decision complained of. Respondent alleges that, by letter dated September 11, 1998, petitioner was informed that her son was not eligible to participate in the program during the 1998-99 school year. Respondent contends that the thirty-day time period began to run on that date, and the appeal, therefore, is untimely. In her reply, petitioner indicates that upon receipt of notice in September 1998, she followed the district's "chain of command" to challenge the decision and that, therefore, the appeal should not be dismissed as untimely. However, petitioner attaches, as an exhibit to her verified reply, a chronology of events indicating that she appealed to respondent at its meeting held on October 27, 1998, and that respondent denied her appeal at that same meeting. Therefore, I find that the thirty-day time period commenced to run on October 27, 1998, not on September 11, 1998, as respondent claims. Nevertheless, the record indicates that petitioner did not serve a verified petition upon respondent until December 14, 1998 beyond the thirty-day period. Thus, the appeal must be dismissed as untimely.

The appeal must also be dismissed as moot. In her request for relief, petitioner seeks a determination that her son is entitled to continue in the program during the 1998-99 school year. Upon initiation of the appeal in December 1998, petitioner requested an interim order directing respondent to permit her son to continue to participate in the district's gifted and talented program. On December 31, 1998, I denied petitioner's request for interim relief. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of a Student with a Disability, 38 Ed Dept Rep 91, Decision No. 13,990; Appeal of Schuler, 37 id. 512, Decision No. 13,915). As noted, petitioner only seeks her son's continued participation in the program for the 1998-99 school year. As that school year has ended, and I have already ruled on the relief sought, the appeal is moot.

THE APPEAL IS DISMISSED.

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