MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the South Colonie Central School District ("respondent") concerning the suspension of their daughter, Erin. The appeal must be dismissed.

On December 8, 1999, Erin, a 16-year old junior at Colonie Central High School, was involved in a fight with another student, Jennifer. The confrontation took place in a hallway at the high school and, while some facts are in dispute, it appears that Erin struck Jennifer at least once. Erin was suspended for five days and a superintendent’s hearing was held on December 20, 1999. After the hearing, her suspension was extended until February 18, 2000. Petitioners appealed to respondent and were notified by letter dated December 29, 1999 that respondent had upheld the suspension. This appeal ensued and petitioners’ request for interim relief was denied on January 19, 2000.

Petitioners contend that Jennifer had been threatening Erin with physical harm in the weeks leading up to the fight and that respondent’s administrators were aware of the threats but did nothing to help Erin or punish Jennifer. Petitioners further contend that Erin only punched Jennifer in self-defense, after Jennifer raised her hand to strike Erin. Petitioners argue that an associate principal improperly imposed the initial five-day suspension and that the suspension imposed by the superintendent was arbitrary, capricious and excessive in light of the circumstances surrounding the fight. Petitioners allege that respondent improperly designated the superintendent as their hearing officer and that respondent failed to meet its burden of proof at the hearing. Petitioners ask that the suspension be reversed.

Respondent contends that its decision to suspend Erin was reasonable and not excessive given the severity of the attack. Respondent states that the principal imposed the suspension, which was communicated to petitioners by a letter from the associate principal at the direction of the principal. Respondent further contends that during the week prior to the fight, administrators warned Erin about confronting Jennifer. Respondent denies the remainder of petitioners’ allegations.

The appeal must be dismissed as moot. The Commissioner of Education will only decide matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Razzano, 39 Ed Dept Rep 303, Decision No. 14,244; Appeal of Davis, 38 id. 805, Decision No. 14,148). In this case, the only relief petitioners requested was the reversal of Erin’s suspension which was, in effect, ruled on at the time the same remedy was requested as interim relief. In view of the fact that the suspension has ended and I have already ruled on the relief sought, the appeal is moot.

Even if it were not moot, I would dismiss the appeal on the merits. 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 they seek relief (8 NYCRR "275.10; Appeal of World Network International Services, Inc., (WNIS), 39 Ed Dept Rep 30, Decision No. 14,164). A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of B.B., 38 Ed Dept Rep 666, Decision No. 14,113; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899). Furthermore, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of B.B., supra; Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of B. B., supra; Appeal of Alexander, supra).

Petitioners admit that Erin committed the offense with which she was charged: hitting another student. They did not submit any evidence in support of their allegations that Erin was provoked or that respondent should have taken action to prevent the fight. In any event, it appears that respondent considered the circumstances leading up to the fight before rendering its decision. Petitioners have not established that the suspension imposed for such serious misconduct was so excessive as to warrant my intervention.

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

THE APPEAL IS DISMISSED.

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