Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Beekmantown Central School District regarding the Dignity for All Students Act.

Decision No. 17,970

(March 22, 2021)

The Law Office of Anthony J. Brock, attorney for respondent, Anthony J. Brock, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the actions of the Board of Education of the Beekmantown Central School District (“respondent”) regarding his allegations that employees of respondent’s district subjected his child (the “student”) to bullying, harassment and/or discrimination in violation of the Dignity for All Students Act (“DASA”).  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  During the 2019-2020 school year, the student attended elementary school in respondent’s district.  In October 2019, the student sought to participate in the school’s student council for the 2019-2020 school year; however, her application was denied on the ground that it was late. 

On November 7, 2019, petitioner submitted a complaint to respondent’s superintendent challenging the denial of the student’s application.  By letter dated November 14, 2019, the superintendent declined to overturn the decision to deny the student’s application as late. 

Petitioner subsequently filed a DASA complaint on November 29, 2019, asserting that the superintendent had unlawfully discriminated against the student.  Thereafter, petitioner filed a second DASA complaint on January 15, 2020, asserting that the principal and a teacher had improperly discussed confidential information pertaining to the student and petitioner’s first DASA complaint.  Petitioner filed a third DASA complaint on January 21, 2020, asserting that a second teacher had retaliated against the student because of the previous DASA complaints.

By letter dated January 24, 2020, respondent’s DASA district coordinator (“coordinator”) notified petitioner that his second DASA complaint was “facially deficient” and did “not fall within the definitions of harassment or bullying.”  By letter dated January 29, 2020, the coordinator notified petitioner that, following an investigation, the district had determined that the allegations in petitioner’s first DASA complaint did “not constitute a violation of the [d]istrict’s DASA policy” and that the superintendent did not engage in “any behavior that would be considered harassment or bullying as those terms are defined by state law or district policy.”  Finally, by letter dated February 3, 2020, the coordinator notified petitioner that his third DASA complaint was “facially deficient and [did] not fall within the definitions of harassment or bullying as defined by the policy.”  This appeal ensued.  By letter dated April 24, 2020, my Office of Counsel notified petitioner that his request for interim relief permitting the student to participate in the student council was unnecessary, insofar as respondent indicated that the student council had “been placed on hold” due to COVID-19 and had “no current activities scheduled.”

Although not entirely clear, petitioner appears to assert that the denial of his DASA complaints was improper.  For relief, petitioner seeks a determination that the student is entitled to participate in the student council for the 2019-2020 school year.[1]

Respondent contends that the appeal must be dismissed as moot.  Respondent further asserts that it properly determined that the student was not eligible to participate in the student council.

First, I must address a procedural matter.  Respondent requests that I direct petitioner to produce evidence concerning an allegation in the petition so that it “can more fully respond to this allegation.”  An appeal to the Commissioner under Education Law §310 is appellate in nature and does not provide for discovery (Appeal of L.S., 59 Ed Dept Rep, Decision No. 17,784; Appeal of W.T.B. and M.B., 44 id. 152, Decision No. 15,129).  Because I have no authority to compel petitioner to produce evidence, I decline to consider respondent’s request.

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).

Here, petitioner broadly challenges the denial of his DASA complaints.[2]  Respondent’s coordinator denied petitioner’s three DASA complaints by letters dated January 24, 2020, January 29, 2020 and February 3, 2020, respectively.  According to the affidavit of service, petitioner commenced this appeal on March 13, 2020 by serving a copy of the petition and notice of petition upon the superintendent.  Affording the usual five days for mailing, petitioner failed to commence this appeal within 30 days of any of respondent’s determinations.  Moreover, petitioner fails to set forth good cause, or any cause, for such delay in the petition.  Accordingly, the appeal must be dismissed as untimely.

In any event, I note that, even if the appeal were not dismissed as untimely, it would 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).

While petitioner alleges violations of DASA, the sole relief that petitioner requests in this appeal is that the student be allowed to participate in the student council for the 2019-2020 school year.  In an affidavit submitted with respondent’s answer, the superintendent indicates that, as a result of the COVID-19 pandemic and state-wide school closures directed by the Governor, the district suspended the student council’s activities for the remainder of the 2019-2020 school year.  Moreover, the 2019-2020 school year has since ended.  Because it is no longer possible for the student to participate in the student council for the 2019-2020 school year, there is no meaningful relief that can be granted (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,940; Appeal of E.S. and W.E., 59 id., Decision No. 17,808).  Accordingly, I find that the appeal would be dismissed as moot, even if it were not dismissed as untimely.

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

THE APPEAL IS DISMISSED.

END OF FILE