Decision No. 17,819
Appeal of M.P. and T.P., on behalf of their child T.P., from action of the Board of Education of the City School District of the City of Schenectady; John Foley as board president; Laurence T. Spring as superintendent; Patricia Paser as assistant to the superintendent and hearing officer; Jeffrey Bennett as Mount Pleasant Middle School principal; and “John Doe,” representing all faculty, staff and other agents or employees of the Schenectady City School District, regarding student discipline.
Decision No. 17,819
(March 4, 2020)
Mann Law Firm, P.C., attorneys for petitioner, Matthew J. Mann, Esq., of counsel
Harris Beach, PLLC, attorneys for respondent, Douglas E. Gerhardt and Amanda E. Jackson, Esqs., of counsel
TAHOE., Interim Commissioner.--Petitioners purport to appeal the decision of the Board of Education of the City School District of the City of Schenectady (“respondent board”); John Foley as board president; Laurence T. Spring as superintendent (“respondent Spring”); Patricia Paser as assistant to the superintendent and hearing officer (“respondent Paser”); Jeffrey Bennett as Mount Pleasant Middle School principal (“respondent Bennett”); and “John Doe,” representing all faculty, staff and other agents or employees of the Schenectady City School District, (collectively, “respondents”) to impose discipline on their child (“the student”). The appeal must be sustained in part and remanded.
During the 2018-2019 school year, the student attended middle school in respondent’s district. By letter dated June 6, 2019, respondent Bennett suspended the student for a period of five days for making threatening statements. Respondent Bennett’s letter informed petitioners that the district would pursue a long-term suspension hearing that could lead to a suspension beyond five days.
By letter also dated June 6, 2019, respondent Spring charged the student with two violations of the district’s code of conduct. Respondent Spring’s letter indicated that a long-term suspension hearing on these charges would convene on June 12, 2019. Thereafter, petitioners and respondent Spring agreed to postpone the hearing date to July 10, 2019.
By letter dated July 3, 2019, respondent Spring amended the charges against the student to the extent of revising the date upon which the student allegedly engaged in misconduct; however, the specific misconduct that the student was accused of engaging in remained the same.
The long-term suspension hearing convened on July 10, 2019 and was presided over by respondent Paser. In a decision dated July 15, 2019, respondent Spring found the student guilty of the charges outlined in the July 3, 2019 amended notice and imposed a 10-week out-of-school suspension to be served from June 13, 2019 through October 31, 2019. As relevant here, respondent Spring advised petitioners of their right to appeal his decision to respondent board. This appeal ensued. Petitioners’ request for interim relief — namely, a stay of the student’s suspension “pending determination by [respondent] [b]oard” — was denied on August 23, 2019.
Petitioners raise several procedural and substantive claims concerning the long-term suspension, including allegations that the student’s due process rights were violated at the long-term suspension hearing. Petitioners request an order “[v]acating the suspension” and “[e]xpunging ... all records of discipline” from the student’s records.
Respondent did not submit a timely answer in this appeal but requested permission to submit a late answer pursuant to §275.13 of the Commissioner’s regulations. Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3). Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731). In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).
Here, the petition was served on August 13, 2019. Thus, respondents had until September 2, 2019 to serve their answer. Respondents’ affidavit of service indicates that the answer was served on September 11, 2019, nine days late. By letter dated September 11, 2019, respondents’ counsel asserts that the answer was served 18 days after petitioners’ request for interim relief was denied and, therefore, “is only slightly beyond the 20-day ... deadline.” Respondents’ counsel further asserts that she was “involved in the hospitalization of her husband for over [four] days causing an unexpected absence from work.”
I do not find that these excuses justify the late filing of the answer under the circumstances. First, the fact that the answer was served fewer than 20 days from the denial of petitioners’ request for interim relief is immaterial. The Commissioner’s regulations are clear that “each respondent upon whom a copy of the petition has been served shall, within 20 days from the time of such service, answer the same” (8 NYCRR §275.13[a]). Second, while I am sympathetic to counsel for respondents’ personal circumstances, she has not identified the precise time period in which she assisted her husband or explained how these circumstances prevented her from submitting a timely answer (see Appeal of Dow, 59 Ed Dept Rep, Decision No. 17,762). Accordingly, I have not accepted respondents’ answer. However, respondents’ affidavits and exhibits submitted in opposition to petitioners’ request for interim relief are properly part of the record before me and, to the extent that such documents are responsive to the allegations contained in the petition, I have considered them (see Appeal of P.H., 59 Ed Dept Rep, Decision No. 17,698; Appeal of C.C., 53 id., Decision No. 16,526; Appeal of Brarens, et al., 51 id., Decision No. 16,317).
The appeal must be remanded to respondent board for a determination of petitioners’ appeal. In the case of a suspension in excess of five days, Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination. Accordingly, the decision of a superintendent to suspend a student following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258; Appeal of R.A., 48 id. 426, Decision No. 15,903).
Although the record indicates that there was initially some confusion as to whether petitioners appealed to respondent board, it appears that petitioners did, in fact, appeal to respondent board when they submitted a document captioned “verified appeal” and dated August 12, 2019. The record also indicates that respondent board has not rendered any determination on petitioners’ appeal. While the Commissioner held in a prior appeal that a board of education’s inaction resulted in a constructive denial of a board-level appeal, the facts of that appeal are not analogous to those of the instant appeal (Appeal of a Student with a Disability, 57 id., Decision No. 17,258 [board’s inaction on parent’s appeal amounted to constructive denial where over four years had elapsed since commencement of the appeal, and it would not have been reasonable for respondent to consider petitioners’ appeal at the time the Commissioner rendered her decision]).
In light of the fact that petitioners did, in fact, appeal the superintendent’s decision to respondent board, I must remand the appeal to respondent board for its determination. Although the student has served the suspension at issue in this appeal, petitioners seek expungement of the suspension from the student’s record, and this claim remains live (Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of D.O., 53 id., Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.
IT IS ORDERED that, within 30 days of this decision and order, respondent issue a written decision granting or denying petitioners’ appeal.
END OF FILE
 Respondent Spring advised petitioners of the rescheduled hearing date in a letter dated June 26, 2019, which was otherwise identical to his June 6, 2019 letter.
 Respondents’ counsel also notes that, because petitioners sought reconsideration of the denial of their request for interim relief, the answer was submitted eight days after the “final decision” on such request.
 I note that the petition and the appeal to respondent board are nearly identical.