Appeal of A.O, on behalf of her child, from action of the Board of Education of the Bedford Central School District regarding student bullying.

 

Decision No. 18,518

(November 12, 2024)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Beth L. Harris, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Bedford Central School District (“respondent”) regarding a Dignity for All Students Act (“Dignity Act”) complaint involving her child (the “student”).  The appeal must be dismissed.

Most of petitioner’s claims must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  The Commissioner’s jurisdiction pursuant to Education Law § 310 is appellate in nature, and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of M.P., 59 id., Decision No. 17,848; Appeal of Parris, 51 id., Decision No. 16,261; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]).

Petitioner purports to appeal the results of a Dignity Act complaint.  However, at the time this appeal was commenced, respondent had not concluded its investigation into petitioner’s complaint.  Therefore, these claims must be dismissed as premature (Appeal of A.G., 57 Ed Dept Rep, Decision No. 17,084; Appeal B.R. and M.R., 48 id. 291, Decision No. 15,861).  Any adverse decision by respondent may be appealed to the Commissioner within 30 days, subject to any internal appeal requirements (Appeal of J.S.G., 64 Ed Dept Rep, Decision No. 18,473).[1]

Petitioner’s remaining requests for relief are without merit.  First, petitioner’s requests concerning the 2024 summer school session are 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).  Since the summer school session at issue has ended, there is no further relief that can be granted (Appeal of J.Q., 59 Ed Dept Rep, Decision No. 17,739; Appeal of S.K., 57 id., Decision No. 17,339). 

Second, petitioner alleges that the student missed numerous course sessions in spring 2024 due to illness and educational “neglect.”  Boards of education have broad authority “[t]o prescribe the course of study by which pupils of the schools shall be graded and classified” (Education Law §§ 1709 [3]; 1804 [1]).  Student grading policies and practices lie within this broad discretion and will only be set aside where they are arbitrary or capricious (Appeal of T.M. and A.M., 45 Ed Dept Rep 276, Decision No. 15,321; Appeal of M.D. and I.D., 41 id. 184, Decision No. 14,658; Appeal of R.W., 40 id. 671, Decision No. 14,580).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

There is no evidence that the district abused its discretion in assigning the student’s grades.  It appears that the student incurred several unexcused absences, which rendered her “ineligible to earn course credit” under board policy.  A board of education may adopt a policy requiring minimum attendance for students to receive academic credit (Appeal of a Student with a Disability, 41 Ed Dept Rep 380, Decision No. 14,719; Appeal of Pasquale, 36 id. 290, Decision No. 13,727; Appeal of Hansen, 34 id. 235, Decision No. 13,292).  Thus, even assuming the conditions of which petitioner complains, the student did not attend enough classes to obtain credit.  As such, there is no basis to substitute my judgment for that of the local school authorities (Appeal of Hickey, 32 Ed Dept Rep, Decision No. 12,741; Appeal of Hermus, 30 id. 404, Decision No. 12,514; Appeal of Timbs, 29 id. 392, Decision No. 12,331).

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

THE APPEAL IS DISMISSED.

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