Appeal of GLENN FEDERMAN, on behalf of his sons JESSE and JARED, from action of the Board of Education of the South Jefferson Central School District regarding equivalency of instruction.

Decision No. 15,413

June 16, 2006

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Marc H. Reitz, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the South Jefferson Central School District ("respondent") that his sons, Jesse and Jared, were not entitled to a letter certifying that they had completed the substantial equivalent of a four-year high school course of study.  The appeal must be dismissed.

Petitioner began providing home instruction to his children during the 1999-2000 school year when Jesse was in the sixth grade and Jared was in the fifth grade.  Each year, petitioner submitted individualized home instruction plans ("IHIP") to respondent's superintendent, and the superintendent determined that these plans complied with  �100.10 of the Commissioner's regulations.  During the 2003-2004 and 2004-2005 school years, the IHIPs included study at a community college.

In January 2005, petitioner requested that respondent's superintendent issue a letter certifying that his sons had completed the substantial equivalent of a four-year high school course of study.  By letter dated January 27, 2005, the superintendent advised petitioner that he had reviewed the materials submitted concerning the students' home instruction and concluded that the instruction received was not substantially equivalent to the four year high school course of study provided in respondent's district.

At respondent's February 14, 2005 meeting, petitioner presented his concerns regarding the superintendent's denial.  By letter dated February 25, 2005, respondent advised petitioner that it supported the superintendent's decision.  This appeal ensued.

Petitioner asserts that respondent's superintendent acted arbitrarily and capriciously in refusing to certify that his sons completed the substantial equivalent of a four-year high school course of study. Respondent contends that petitioner's submission demonstrates that his sons completed only two years of high school instruction.  Respondent further asserts that a superintendent is not obligated to certify the substantial equivalence of instruction received by a student beyond compulsory school age.  Finally, respondent contends that the appeal is moot and objects to petitioner's reply.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  Within days of beginning this appeal, Jesse was awarded a high school equivalency diploma based upon his successful completion of 24 semester hours as a recognized candidate for a college degree.  Based upon the records of the State Education Department, I take administrative notice of the fact that Jared was awarded an equivalency diploma on the same basis in August 2005.

The issuance of these equivalency diplomas renders the appeal moot because Jesse and Jared have achieved an alternative means of establishing their achievement of the preliminary education required for conferral of a college degree.  Jesse and Jared are both beyond compulsory school attendance age.  Section 3.47 of the Commissioner's regulations provides students beyond compulsory school age with six alternatives to demonstrate receipt of the preliminary education required before an institution of higher education in the State may confer a degree.  While a superintendent's certification that a student completed the substantial equivalent of a four-year high school course of study is one of these alternatives, holding a New York State high school equivalency diploma is one of five other equally viable alternatives.

While the appeal must be dismissed as moot, I note that �100.10 of the Commissioner's regulations was promulgated in part to assist school authorities in meeting their responsibility to determine the substantial equivalence of instruction provided at home to students of compulsory school age.  In addition, the State Education Department strongly encourages districts to perform this evaluation for students beyond compulsory school age.  Where a student has completed four years of high school instruction with approved IHIPs, a superintendent may certify that the student has complied with �100.10 of the Commissioner's regulations in completing the substantial equivalent of a four-year high school course of study.

     In light of this disposition, I need not address the parties' remaining arguments.

     THE APPEAL IS DISMISSED.

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