Appeal of A.W., on behalf of her son T.R., from action of the Board of Education of the Middle Country Central School District regarding student discipline.

Decision No. 15,535

(February 27, 2007)

Offices of Larry J. McCord and Associates, attorneys for petitioner, Larry J. McCord, Esq., of counsel

Guercio & Guercio, attorneys for respondent, Christine M. LaPlace, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Middle Country Central School District (“respondent”) to suspend her son, T.R., from school.  The appeal must be dismissed.

On March 31, 2005, T.R. was involved in a physical altercation with another student.  A teacher, who intervened in the confrontation, was pushed into a desk and fell onto her back.  T.R. was suspended for five days and the matter was referred to a superintendent’s hearing, which was held on April 6, 2005.  At the hearing, T.R. pled guilty to the charge of engaging in a physical altercation with another student, but pled not guilty to the charge of pushing the teacher into a desk.  By letter dated April 7, 2005, respondent’s superintendent informed petitioner that her son was found guilty of both offenses and would be suspended for the remainder of the school year and the first quarter of the 2005-2006 school year.  By letter dated June 13, 2005, respondent board upheld the superintendent’s decision.  This appeal ensued.

Petitioner contends that her son is not guilty of the charge of pushing the teacher because he did not intend to push her.  She also alleges that the penalty is excessive and asks that it be reduced.  Petitioner requests that her son’s record be modified accordingly.

Respondent contends that petitioner has failed to state a claim for relief, that the appeal is untimely and moot, that the finding of guilt on the second charge was proper, and that the penalty was appropriate.

I must first address the procedural issues.  Respondent asserts that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).  The record indicates that the June 13, 2005 determination was mailed to petitioner’s counsel.  However, there is no evidence in the record to indicate when petitioner actually received the determination.  As such, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be June 18, 2005.  Petitioner thus had to commence her appeal on or before July 18, 2005, which she did.  Consequently, I will not dismiss the appeal as untimely.

Respondent also argues that the appeal should 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).  Although the suspension has been served, to the extent that petitioner contends that her son is not guilty of pushing the teacher and requests that his records be modified accordingly, a current controversy remains, and I will not dismiss the appeal as moot.

Turning to the merits, petitioner argues that her son is not guilty of pushing the teacher because it was not intentional.  The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107).  Based on T.R.’s statement and testimony of the teacher in question, T.R. intended to push the other student, not the teacher.  However, her fall was a direct result of T.R.’s intentional action toward the other student.  It is clear from the testimony that T.R. was involved in an altercation with another student during which he pushed a teacher, which caused her to fall.  Therefore, I find no basis to overturn respondent’s finding of guilt on the charge of pushing a teacher.

     Under these circumstances, I find no basis to modify T.R.’s records.

THE APPEAL IS DISMISSED.

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