Decision No. 18,100
Appeal of D.R., on behalf of her child, from action of the Board of Education of the Holland Central School District regarding student discipline.
Decision No. 18,100
(March 28, 2022)
Lundberg Price P.C., attorneys for respondent, Dana A. Lundberg, Esq., of counsel
ROSA., Commissioner.--Petitioner challenges the decision of the Board of Education of the Holland Central School District (“respondent”) to impose discipline on her child (“the student”). The appeal must be dismissed.
During the 2020-2021 school year, the student attended eleventh grade at respondent’s high school. On May 26, 2021, the student uploaded a post on his personal social media account that disparaged another student. Respondent’s dean of students spoke with the student the following day, who admitted that he authored the post. The dean assigned the student to an hour of detention to be served that day. The student refused to serve the detention period, swore, and left school.
In a letter dated June 1, 2021, respondent’s high school principal proposed that the student be suspended for two days for failing to comply with the dean’s directive and using vulgar language. Petitioner appealed the two-day suspension to respondent. By letter dated July 20, 2021, respondent denied petitioner’s appeal. This appeal ensued.
Petitioner argues that the suspension was excessive; that respondent did not provide written notice of the charges in a timely manner; that respondent could not punish the student for his off-campus speech; and that respondent failed to follow the student’s behavior management plan in imposing discipline. Petitioner seeks expungement of the short-term suspension from the student’s record.
Respondent asserts, among other defenses, that petitioner’s claim is untimely. On the merits, respondent denies petitioner’s allegations and argues that it acted within its discretion.
The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or 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 notice of the determination or act (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). Petitioner indicates that she received respondent’s July 20 letter denying her appeal on July 28, 2021. Accordingly, petitioner was required to commence an appeal by August 27, 2021. Petitioner did not do so until August 30, 2021.
Petitioner requests that this delay be excused for two reasons. First, she contends that respondent’s July 20, 2021 letter “lack[ed] contact information to further appeal.” Respondent, however, had no obligation to inform petitioner of her right to appeal to the Commissioner (Appeal of S.P. and N.P., 56 Ed Dept Rep, Decision No. 17,029). In any event, the July 20 determination did, in fact, inform petitioner that “the final decision of the Board may be appealed to the Commissioner within 30 days of the decision.” Petitioner identifies no law or policy that would require respondent to provide more specific information.
Second, petitioner indicates that she sent an “appeal” to the Office of Counsel on August 16, 2021. The Office of Counsel received several documents from petitioner on August 19, 2021. In a letter dated the following day, the Office of Counsel returned this submission to petitioner, noting that it lacked a verified petition, notice of petition, and affidavit of personal service. This letter, like respondent’s June 20 letter, indicated that an appeal to the Commissioner must “be initiated [within] 30 days of the action or decision complained of.” Nevertheless, petitioner failed to commence an appeal within the requisite timeframe. Accordingly, I find that petitioner has failed to establish good cause for the delay (see Appeal of Ruggiero, 59 Ed Dept Rep, Decision No. 17,837; Appeal of M.M., 58 id., Decision No. 17,645). Consequently, the appeal must be dismissed as untimely.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
 Although respondent also sent a copy of this letter via certified mail that arrived on August 9, 2021, it is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring a proceeding (see Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988; Appeal of N.M., 59 id., Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483). Thus, as she admits, petitioner had actual notice of respondent’s determination as of July 28, 2021.