Decision No. 17,226
Appeal of B.A. and S.A., on behalf of their son N.A., from action of the Board of Education of the Liverpool Central School District regarding student discipline.
Decision No. 17,226
(October 23, 2017)
James P. McGinty, Esq., attorney for petitioners
Bond Schoeneck and King, PLLC, attorneys for respondent, Christa R. Cook, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Liverpool Central School District (“respondent”) to suspend their son, N.A. (“the student”), for the remainder of the 2016-2017 school year. The appeal must be dismissed.
During the 2016-2017 school year, the student attended respondent’s high school and was a member of the hockey team (“team”). On January 5, 2017, respondent’s executive high school principal (“principal”) received a telephone call from respondent’s athletic director notifying him that during practice members of team told their coach that the student posted “‘Columbine like statements’ ... [and] threats against some players on the team” online. The athletic director told the principal that he would contact the student’s parents. The principal and athletic director agreed to meet at the ice rink where practice was being held.
According to hearing testimony given by the principal, the student, while being questioned at the ice rink, admitted to posting a quote about Columbine in the My Story section of his Snapchat account and telling another player that he was going to shoot and kill all of the team members except two of the captains because he wanted them to “watch everything happen and watch [the] response or reaction on their face.” The student stated that he had done these things as a joke. Petitioners arrived at the ice rink and met with the principal who advised them that the student should not come to school the following day because he was suspended. The principal also advised petitioners that they would be hearing from respondent’s high school annex principal (“annex principal”).
By letter dated January 6, 2017, the annex principal notified petitioners that the student was accused of “V-8 Reckless Endangerment,” a violation of the district’s code of conduct and therefore, the student was suspended for five days. The letter advised that the annex principal was requesting a superintendent’s disciplinary hearing (“hearing”).
By letter dated January 10, 2017, the superintendent notified petitioners that, after speaking with petitioner S.A., the superintendent’s disciplinary hearing originally scheduled for January 11, 2017, was rescheduled to January 12, 2017. Petitioners and N.A. participated in the hearing held on January 12, 2017. By letter dated January 13, 2017, respondent’s superintendent of schools (“superintendent”) notified petitioners that he found the student guilty of “Reckless Endangerment” and that the student was suspended from school for the “remainder of the 2016-2017 school year.” The letter advised that the student could return to school on the first day of class of the 2017-2018 school year.
By letter dated January 23, 2017, petitioners appealed the suspension to respondent. On February 13, 2017, respondent discussed the appeal during an executive session. By letter dated March 1, 2017, respondent notified petitioners that it was upholding the superintendent’s suspension. This appeal ensued.
Petitioners argue that “the [d]istrict’s actions were a rush to judgement.” They contend that they requested an adjournment of the superintendent’s hearing to obtain counsel, but that the district only granted a one-day adjournment, which did not provide them with sufficient time. Petitioners request that the decision of the district be set aside and that the student be afforded the opportunity for a new hearing during which he can “be properly represented.”
Respondent argues that petitioners have failed to state a claim and that the appeal is untimely.
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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). 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 K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).
Respondent upheld the superintendent’s determination in a letter dated March 1, 2017. The record does not indicate when petitioners received this letter; therefore, the letter is deemed to have been received on March 7, 2017. Petitioners were therefore required to serve a petition on or before April 6, 2017. The petition was served on respondent on April 13, 2017, more than 30 days thereafter. Petitioners give no excuse for their delay; therefore, the appeal must be dismissed as untimely.
Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897). What constitutes “reasonable notice” varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of F.W., 48 Ed Dept Rep 399, Decision No, 15,897; Appeal of a Student with a Disability, 46 id. 385, Decision No. 15,540). One day’s notice has been held inadequate to provide an opportunity for a fair hearing (Carey v. Savino, 91 Misc.2d 50; Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360).
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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
Petitioners allege that they requested time to retain counsel and that the hew hearing date was scheduled “over [their] objections as that did not provide sufficient time for [them] to obtain an attorney.” Respondent submits an affidavit from the secretary to the director of student services (“secretary”), who spoke with petitioner S.A. about rescheduling the hearing. The secretary attests that she asked petitioner S.A. “what day would be more convenient ...” and rescheduled the hearing for the date and time that petitioner S.A. requested, January 12, 2017, at 10:30 a.m. The secretary also attests that at no time did petitioner S.A. state that she or petitioner B.A. needed additional time to obtain counsel. An affidavit from the superintendent states that after the hearing was postponed to January 12, 2017, neither of the petitioners “raise[d] any objections or concerns about the hearing being held on January 12 or that they needed additional time to obtain a lawyer....” There is no indication in the hearing transcript that petitioners made a request to the hearing officer for another adjournment or mentioned difficulty in, or a desire to, obtain counsel.
On this record, petitioners have not proven that they requested an adjournment in order to obtain counsel and were unreasonably denied an adjournment of sufficient length to permit them to do so. Therefore, petitioners have not met their burden of proving that they have a clear legal right to the relief requested, which is an order directing that petitioners be afforded the opportunity for a new hearing.
THE APPEAL IS DISMISSED.
END OF FILE
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 Attached to the letter is a discipline referral which gives a detailed description of the alleged “reckless endangerment.”
 Petitioners, the student and counsel were invited to attend and present relevant information.
 I note that petitioners are now represented by counsel, but the petition is devoid of any allegations that petitioners attempted to retain an attorney to represent the student prior to the hearing.