Appeal of MARINO D'ORAZIO and MARGARET B. CAREY from action of the Board of Education of the Onteora Central School District regarding a voter referendum.

Decision No. 14,689

(February 22, 2002)

Donoghue, Thomas, Auslander, & Drohan, attorneys for respondent, John Donoghue, Esq., of counsel

 

MILLS, Commissioner.--Petitioners, members of the Board of Education of the Onteora Central School District ("respondent"), challenge respondent"s decision to place an advisory proposition before district voters concerning the continuing use of the term "Onteora Indian" in connection with school sports teams and other student athletic activities. The appeal must be dismissed.

On April 18, 2001, respondent adopted a resolution to place a referendum before district voters at the school district's annual election on May 15, 2001. The purpose of the referendum was to gauge public opinion by asking district voters whether the district should continue using the term "Onteora Indian" in connection with school sports teams and other student athletic activities. Petitioners' request for interim relief was denied on April 30, 2001.

Petitioners contend that it is improper for respondent to put this issue to a public referendum. Petitioners allege that several members of the board stated that they would honor the public vote and be bound by the vote, in violation of previous decisions by the Commissioner of Education. Petitioners request that the April 18, 2001 board resolution be annulled.

Respondent argues that there is no legal bar to placing a non-binding referendum on the ballot. Respondent further argues that, despite prior decisions of the Commissioner of Education advising against this practice, respondent deemed it the best method of ascertaining public opinion in light of reports from the United States Department of Education and my April 5, 2001 letter to school district administrators on the subject of Native American mascots.

The appeal must be dismissed as moot. 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 Avnet, 41 Ed Dept Rep __, Decision No. 14,669; Appeal of Diane M., 39 id. 709, Decision No. 14,356). Petitioners requested an annulment of respondent's April 18, 2001 resolution to place the non-binding referendum to a public vote. The vote on the referendum has already occurred and the relief sought cannot be granted.

Although the appeal is dismissed as moot, I reiterate that advisory propositions and referenda are discouraged because they may improperly infer voter determination of the issue submitted for consideration (Appeal of Marshall, et al., 41 Ed Dept Rep __, Decision No. 14,667; Appeal of Moonan, et al., 28 id. 390, Decision No. 12,148; Appeal of Feldheim, 8 id. 136, Decision No. 7,967).

 

THE APPEAL IS DISMISSED.

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