Appeal of P.R., on behalf of her child, from action of the Board of Education of the Chenango Valley Central School District regarding the mask mandate and application for the removal of the board of education, David Gill as Superintendent, Michelle Feyerabend as Assistant Superintendent, and Robert Auerbach as District Medical Director.

Decision No. 18,240

(February 14, 2023)

Coughlin & Gerhart, LLP, attorneys for respondent, Nicholas S. Cortese, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Chenango Valley Central School District (“respondent”) that her child (“the student”) is not entitled to a medical exemption from respondent’s mask requirement during the 2021-2022 school year.  She also seeks the removal of the board of education, the superintendent, the assistant superintendent, and the district’s medical director in connection therewith.  The appeal must be dismissed and the application denied.

During the events described in this appeal, the New York State Department of Health (“NYSDOH”) required that all students attending in-person instruction wear facial coverings.  In February 2022, petitioner requested a medical exemption from the mask requirement on the student’s behalf.  Respondent denied this request, and the instant appeal ensued.

Petitioner argues that, when masks were required by NYSDOH, respondent did not offer a medical exemption to students attending in-person instruction.  Petitioner alleges that this constituted unlawful discrimination against children with medical conditions such as her child.  For relief, petitioner requests that the student be permitted to attend in-person learning without wearing a mask.  Petitioner also seeks removal of the board of education, the superintendent, the assistant superintendent, and the district’s medial director. 

Respondent argues that the petition must be dismissed as moot and for failure to join necessary parties.  Respondent also contends that petitioner’s application for removal must be denied as petitioner does not allege any willful violation of law or neglect of duty. 

I must first address several procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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 that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522). 

Facial coverings are no longer mandatory in New York schools  (Appeal of M.F., 61 Ed Dept Rep, Decision No. 18,122; see New York State Department of Health and State Education Department Joint Mask Guidance Letter [Mar. 1, 2022], available at https://coronavirus.health.ny.gov/system/files/documents/2022/03/joint-mask-guidance-030122.pdf [last accessed Feb. 3, 2023]).  Moreover, the district maintains that it no longer requires any student to wear a face covering.  Thus, the student is no longer required to wear a mask, obviating the need for an exemption thereto (Appeal of Scott and Edie, 59 Ed Dept Rep, Decision No. 17,808; Appeal of P.D. and C.C., 56 id., Decision No. 16,999; Appeal of Cham, 55 id., Decision No. 16,873).  As no further relief can be afforded, the appeal must be dismissed as moot.

Petitioner’s application for removal must be denied on procedural grounds.  In a removal proceeding, the individual whose removal is sought must be joined as a necessary party.  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to answer the application for removal (8 NYCRR 277.1 [b]; Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).  The Commissioner has consistently denied applications for removal where the petitioner failed to name the individual sought to be removed in the caption of the petition and notice of petition (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).  Here, petitioner failed to name or serve the individuals whose removal she seeks.  Moreover, some of these individuals are not “school officers” within the meaning of Education Law § 2 [13] (see, e.g., Appeal of Trojahn, 57 Ed Dept Rep, Decision No. 17,360 [director of health, physical education and athletics not subject to removal]). 

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

THE APPEAL IS DISMISSED.

THE APPLICATION FOR REMOVAL IS DENIED.

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