Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY from action of the Board of Education of the Wayne Central School District regarding student discipline.

Decision No. 15,461

(August 29, 2006)

Vinita Goel, Esq., attorney for petitioner

Wayne A. Vander Byl, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals his suspension by the Board of Education of the Wayne Central School District (“respondent”).  The appeal must be dismissed.

Beginning September 19, 2005, petitioner, an 18-year- old senior in respondent’s high school, was suspended for possession of alcohol and marijuana.  Although the suspension was in effect for the remainder of the 2005-2006 school year, petitioner was allowed to receive tutoring at respondent’s tutoring center.  On December 13, 2005, petitioner caused an altercation at the tutoring center during which he crushed a computer disk in his hand and threw it at a window.  Thereafter, petitioner was suspended from attending the tutoring center.  On December 19, 2005, the fourth day of this suspension, a superintendent’s hearing was held.  At the hearing, petitioner pled guilty to the charges against him.  By letter dated December 19, 2005, the superintendent notified petitioner that he was suspended from attending the tutoring center for the remainder of the 2005-2006 school year.

On December 22, 2005, petitioner appealed the superintendent’s decision to respondent.  With his appeal, petitioner submitted for the first time a letter dated November 14, 2005 from a psychologist stating that petitioner suffers from post traumatic stress disorder, stemming from the death of his mother in 2003, cannabis abuse and attention deficit disorder.  By letter dated January 18, 2006, respondent notified petitioner that it voted to sustain the superintendent’s decision regarding discipline.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 9, 2006.

Petitioner maintains that respondent should have known he had a disability and that his behavior was a manifestation of his disability.  Petitioner also maintains that the December 13, 2005 offense was trivial and posed no threat to his health or safety or that of others.

Respondent denies that it should have known petitioner had a disability and asserts that the only information it received concerning an alleged disability was in the November 14, 2005 letter which it received with petitioner’s December 22, 2005 appeal.

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).  For relief, petitioner only seeks the right to continue receiving education from respondent.  Since petitioner has served the suspension, no further meaningful relief can be granted, and the appeal of respondent’s  determination must be dismissed as moot (Appeal of L.L., 45 Ed Dept Rep 217, Decision No. 15,306; Appeal of R.R. and K.R., 41 id. 405, Decision No. 14, 726).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Petitioner’s claim -- that he should have been treated as a student presumed to have a disability for disciplinary purposes -- has no merit.  Section 201.5(a) of the Commissioner’s regulations provide, in part:

Where the school district is deemed to have knowledge that the student was a student with a disability before such behavior occurred, such student is a “student presumed to have a disability for discipline purposes.”

A district is only deemed to have knowledge of a disability if one of several conditions is met prior to the time the behavior occurred (8 NYCRR �201.5[b]).  In this case, petitioner does not allege that respondent had any basis for knowing that he had a disability prior to his involvement in the December 13, 2005 altercation at the tutoring center.  Moreover, petitioner admits that the November 14, 2005 letter from his psychologist was not shared with respondent until his December 22, 2005 appeal of his suspension from the tutoring center.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

Accordingly, petitioner has not met his burden of establishing any basis to deem that the district had knowledge of a disability prior to the time of the behavior.  I further note that since being made aware of the November 14, 2005 letter, respondent’s Committee on Special Education (“CSE”) attempted to conduct an evaluation, but petitioner refused to be evaluated until his stay request was denied.

Petitioner further contends that the December 13, 2005 offense was trivial and posed no threat to his health or safety or that of others.  However, Education Law �3214 (3) (a) also allows for the suspension of pupils who are “insubordinate or disorderly or violent or disruptive.”  The transcript of the December 19, 2005 superintendent’s hearing shows that petitioner was charged with ”continued instances of insubordination directed toward the tutoring staff” for which petitioner pled guilty.  Respondent was therefore well within its legal authority to implement the suspension.

THE APPEAL IS DISMISSED.

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