Decision No. 14,316

(March 2, 2000)

MILLS, Commissioner.--Petitioner challenges the adequacy of the alternative instruction provided by the Board of Education of the Riverhead Central School District ("respondent") for her daughter, Christina, during a period of academic suspension. The appeal must be dismissed.

On or about February 22, 1999, the principal of respondent's high school suspended Christina for assaulting a teacher. A superintendent's hearing was held on March 2, 1999, which continued the suspension through the end of the school year and provided for Christina's alternative instruction at respondent's evening alternative education program ("the program"). Dissatisfied with this program, petitioner commenced this appeal on June 28, 1999.

Petitioner contends that the district denied Christina any alternative instruction during the first week of her suspension and failed to provide adequate alternative instruction thereafter. Petitioner alleges that the district failed to supply Christina with all of her books and assignments or the lab component of her Earth Science course. Petitioner requests that I direct respondent to comply with the alternative instruction provisions of the Education Law, that respondent's superintendent be reprimanded, and that Christina be provided with a tutor until her coursework has been completed.

Respondent contends that the appeal must be dismissed as untimely and moot and because petitioner failed to exhaust her administrative remedies and failed to meet her burden of proof. Respondent also contends that its alternative education program complies with the Education Law. Respondent contends that it was unsafe to place a tutor with Christina during the first week of her suspension and that she was provided with alternative education as soon as reasonably possible.

The appeal must be dismissed as moot. The Commissioner of Education only decides 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 Suspected of Having a Disability, 38 Ed Dept Rep 796, Decision No. 14,145; Appeal of Alan G., 38 id. 46, Decision No. 13,978). The appeal was filed after Christina completed her suspension and was no longer receiving alternative education. Thus, the appeal is moot.

Even if it were not moot, the appeal would fail on the merits. Petitioner contends that the program's two-hour length is inadequate and argues that the Education Law requires five and one-half hours of instruction per day. Education Law "3214(3)(e) requires that a student of compulsory school age who is suspended from school receive alternative instruction. Alternative instruction must be substantially equivalent to the student's regular classroom program (Appeal of Watts, 23 Ed Dept Rep 459, Decision No. 11,282). The question of whether a program offers substantially equivalent instruction must be decided on a case-by-case basis (Appeal of Coleman, 35 Ed Dept Rep 529, Decision No. 13,621; Appeal of Forster, 31 id. 443, Decision No. 12,693). Previous Commissioner's decisions have found two hours of alternative instruction per day sufficient to fulfill a district's obligation under the Education Law (Appeal of Henry, 34 Ed Dept Rep 470, Decision No. 13,385; Appeal of Dloniak, 33 id. 717, Decision No. 13,210).

Respondent states that certified teachers conduct its alternative education program and that the program's student to teacher ratio is maintained at no more than four to one. Respondent maintains that this allows for intensive instruction similar to tutoring and many students benefit from the program. The program's lead teacher collected daily assignments from Christina's regular teachers and returned her completed assignments to those teachers for review and grading. In addition, there was regular communication between the teachers and Christina's guidance counselor. Respondent contends that Christina failed to take full advantage of the program, was absent numerous times and refused to complete assignments. While petitioner disputes these statements, she offers no evidence to support her contentions. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of World Network International Services, Inc., 39 Ed Dept Rep 30, Decision No. 14,164). Petitioner has failed to meet that burden. Based on the record, I cannot conclude that respondent failed to provide proper alternative instruction.

Although I am dismissing the appeal, there are two issues that I must address. Respondent states that arrangements could have been made for Christina's Earth Science lab work in the program and that such arrangements have previously been made for other students. Respondent states that arrangements were not made for Christina because neither she nor petitioner requested them. Petitioner claims she was unaware of such an option. I find this troubling, even if Christina had the opportunity to make up this work in the following semester. I encourage respondent to ensure that parents and students are informed of all opportunities to complete coursework on schedule.

In regard to respondent's one-week delay in providing alternative education to Christina, respondent argues that it could not provide a home tutor because Christina had a history of violence and posed a safety risk. Education Law "3214(3)(e) provides that where a student has been suspended, immediate steps shall be taken for attendance upon instruction elsewhere. The term "immediate" does not mean instantaneously, but it does mean that a school district should act reasonably promptly, with due regard for the nature and circumstances of the particular case (Turner v. Kowalski, 49 AD2d 943; Appeal of Benkelman, 34 Ed Dept Rep 250, Decision No. 13,299). While I understand respondent's concerns, it appears that more immediate steps could have been taken to safeguard a tutor, for example, by requiring petitioner's presence at the sessions. I remind respondent of its obligation to provide prompt alternative education in the future.

In view of the foregoing disposition, I will not address the other procedural issues raised by respondent.

THE APPEAL IS DISMISSED.

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