Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Mamaroneck Union Free School District regarding student discipline.

Decision No. 17,754

(September 18, 2019)

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Mamaroneck Union Free School District (“respondent”) to impose discipline on her son (“the student”).  The appeal must be dismissed.

During the 2018-2019 school year, the student attended respondent’s middle school and received special education services pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law.

The record indicates that on February 15, 2019, the middle school principal suspended the student for a period of five days.  According to a notice of suspension (“short-term suspension notice”) dated February 15, 2019, the student “engag[ed] in conduct that [was] insubordinate and disruptive in the hallways” and “engag[ed] in conduct that endanger[ed] the safety, health, morals and welfare of others” by [u]sing language and a gesture that [was] harassing and threatening towards a teacher.”  The letter advised petitioner of her right to request an informal conference and to ask questions of complaining witnesses.  The letter further indicated that the matter would “be going to a [s]uperintendent’s hearing” and that petitioner would “be informed of the date and the circumstances under separate cover.”

By letter dated February 15, 2019, respondent’s superintendent (“superintendent”) charged the student with the conduct described in the short-term suspension notice and indicated that a long-term suspension hearing would be convened on February 27, 2019.

By letter dated February 25, 2019, the superintendent sent petitioner an “amended” notice of disciplinary charges that, in addition to the charges detailed above, accused the student of the following two charges:

On or about January of 2019 and previously, [the student] endangered the safety, health and morals and welfare of himself and/or others when he made inappropriate remarks of a sexual nature to other students in school and via social media.

On or about January 18, 2019, [the student] endangered the safety, health, morals and welfare of himself and/or others when he made inappropriate physical contact with another student on school grounds.

The hearing, presided over by a hearing officer, convened as scheduled on February 27, 2019.  After finding the student guilty of all charges, the hearing officer adjourned the hearing and the district’s committee on special education (“CSE”) conducted a manifestation determination review.  The CSE concluded that two of the charges – (1) using language and a gesture that was harassing and threatening towards a teacher, and (2) being insubordinate and disruptive in the hallways – were a manifestation of the student’s disability.  The hearing officer recommended that the student be suspended for the remainder of the 2018-2019 school year.

By letter dated March 13, 2019, the superintendent adopted the hearing officer’s recommendations with respect to guilt and penalty.  The superintendent indicated that he had not considered the student’s guilt as to the two charges that the CSE found to be a manifestation of the student’s disability in reaching his penalty determination.  The letter further stated that if the student met certain conditions, including participation in outside counseling, he might be permitted return to school during the fourth marking period in April 2019.[1]

By letter dated April 1, 2019, petitioner appealed the superintendent’s determination to respondent.  By letter dated May 9, 2019,[2] respondent notified petitioner that it upheld the superintendent’s determination.  This appeal ensued.

Petitioner argues that, with respect to the student’s short-term suspension, she was not afforded an opportunity for an informal conference with the principal where she could question complaining witnesses prior to imposition of the student’s suspension.  With respect to the student’s long-term suspension, petitioner asserts that she did not receive reasonable notice of the new charges contained in the amended notice of disciplinary hearing.  Petitioner further contends that the decision to suspend the student was not based on competent and substantial evidence and that the penalty should be set aside as excessive.  For relief, petitioner requests that the student’s suspension be expunged from his record and that she be reimbursed for expenses associated with outside counseling.

Respondent argues that the appeal must be dismissed as untimely.  On the merits, respondent contends that it complied with all relevant requirements of Education Law §3214 and that the decision to suspend the student from school was based on competent and substantial evidence.  Respondent further argues that, to the extent petitioner requests reimbursement for fees she incurred in connection with outside counseling, such request must be dismissed for lack of jurisdiction.

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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Respondent’s determination from which petitioner appeals is dated May 9, 2019.  Respondent conveyed this determination to petitioner via email and U.S. mail.[3]  The record does not reveal when petitioner received respondent’s May 9, 2019 determination; therefore, affording the usual five days for mailing, excluding Sundays and holidays, petitioner’s appeal was required to be served by June 14, 2019.  Petitioner did not commence this appeal until June 20, 2019.  Therefore, the appeal is untimely, warranting dismissal.

Petitioner argues that this delay should be excused because her uncle was involved in a motorcycle accident on June 10, 2019 and died from his injuries on June 22, 2019.  Petitioner explains that she “[f]ormerly” exercised power of attorney over her uncle, and that she remained “responsible for handing a few of [her uncle’s] affairs, posthumously.”  She further asserts that she was “out [of] the state” for an unspecified period of time.  While I empathize with petitioner’s loss, I do not find that she has established good cause for the delay.  Petitioner does not identify the length of time in which she was located outside of New York State.  Moreover, to the extent petitioner alleges that she had to handle “a few of [her uncle’s] affair, posthumously,” the record reflects that the instant appeal was served on June 20, 2019, two days before petitioner’s uncle died.  Therefore, I cannot find that petitioner has established good cause to excuse service of the petition beyond the 30-day time limitation (Appeal of Jarosz, 34 Ed Dept Rep 600, Decision No. 13,423 [holding that personal illness is an insufficient excuse for a delay in commencing an appeal]; cf. Appeal of J.L.I., 57 [declining to excuse late request for transportation to nonpublic school where petitioner explained that she and her children, inter alia, were grieving the sudden loss of her father, and petitioner struggled with personal issues including cop[ing] with a [d]ivorce.”]).

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

THE APPEAL IS DISMISSED.

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