Appeal of C.W., on behalf of his daughter M.W., from action of the Board of Education of the East Islip Union Free School District regarding student attendance.

Decision No. 15,591

(June 12, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Alla Brodsky, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the East Islip Union Free School District (“respondent”) to remove his daughter, M.W., from a 12th grade English class.  The appeal must be dismissed.

Respondent‘s minimum attendance policy applies to all students in grades 9-12.  Credit is denied if a student has four unexcused class absences in any quarter in a course meeting five periods per week.  According to the student handbook, parents may provide an explanation of their child’s absences within five days of the absence excluding weekends.

M.W. is a senior at respondent’s high school.  During the 2005-2006 school year, she did not earn credit for English 11 due to excessive absenteeism.  At the start of the 2006-2007 school year, the district permitted her to take English 11 and English 12 simultaneously on the condition that she enter into an agreement (“the agreement”) which required her to abide by the district’s code of conduct; maintain passing grades in both English 11 and 12; and maintain an 85% attendance rate in both classes.

Between September 6 and October 24, 2006, M.W. allegedly missed 21 classes in total and four English 12 classes without providing an excuse.  As a result, on October 24, 2006, M.W. was removed from English 12.

On December 8, 2006, petitioner met with the assistant principal to discuss M.W.’s removal from English 12.  By letter dated December 10, 2006, petitioner asked that M.W.’s absences on September 25, October 5, and October 11, 2006 be excused due to illness.  In addition, petitioner requested a copy of the district’s attendance policy, disciplinary policy and student rules and regulations, all of which were provided.  Petitioner also requested that he be permitted to review M.W.’s education file.

By letter to the superintendent, dated December 20, 2006, petitioner argued that M.W. had only three unexcused absences and was therefore improperly expelled from English 12 class.

On December 22, 2006, the assistant principal met with petitioner and showed him M.W.’s academic transcript and a chart summarizing her progress towards a Regents diploma.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 13, 2007.

Petitioner alleges that M.W. had only three, not four, unexcused absences and was therefore erroneously removed from English 12.  Petitioner also alleges that the district’s delay in providing him with M.W.’s education file caused his late filing of the petition.

Respondent alleges that the petition is untimely and that petitioner failed to establish good cause for the delay.  Respondent also alleges that petitioner fails to state facts sufficient to constitute a basis for relief and that petitioner lacks standing.  Respondent alleges that M.W. violated the agreement by being absent from English 12 four times without excuse, by failing to maintain a passing status in English 12 and by violating the district’s code of conduct by being absent from class.

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 may excuse a deminimus delay in commencing an appeal (Appeal of Kathy and Shawn R., 39 Ed Dept Rep 152, Decision No. 14,199).

M.W. was removed from English 12 on October 24, 2006 and petitioner commenced his appeal on February 2, 2007.  Petitioner alleges that the district’s delay in providing him with M.W.’s education file resulted in the late filing.  The record reflects that on December 11, 2006, petitioner received from respondent’s main office M.W.’s period attendance report showing unexcused absences from September 4 through November 1, 2006.  The record also shows that, on or prior to December 22, 2006, petitioner was provided with the district’s attendance policy, disciplinary policy and student rules and regulations as well as M.W.’s academic transcript and a chart summarizing her progress in receiving her Regents diploma.  Therefore, petitioner was aware of the operative facts concerning M.W.’s removal from English 12 no later than December 22, 2006.  However, he did not initiate this appeal for an additional 42 days.  Therefore, I find that petitioner has failed to show good cause for the late filing of this appeal and his appeal must be dismissed as untimely (seeAppeal of Ruffino and Wilber, 31 Ed Dept Rep 183, Decision No. 12,613).

In light of this disposition, I need not address the parties’ remaining contentions or other procedural issues.

THE APPEAL IS DISMISSED.

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