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Decision No. 13,476

Appeal of TERESA GAIL KLINE from action of the Board of Education of the Edmeston Central School District regarding participation in graduation exercises.

Decision No. 13,476

(August 29, 1995)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Craig M. Atlas, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's decision to prohibit her from participating in the district's high school graduation ceremony. The appeal must be dismissed.

On August 26, 1994, petitioner voluntarily withdrew from the district's high school. During the three years prior to her withdrawal, petitioner accumulated 14-1/2 credits towards graduation.

After withdrawing from the district, petitioner enrolled in a General Equivalency Diploma ("GED") program at the Otsego-Northern Catskills BOCES. Petitioner completed all the requirements for a GED diploma in the fall of 1994.

In January 1995, petitioner made a request to respondent to participate in the district's June graduation ceremony. Respondent denied this request. On February 9, 1995, respondent approved a special policy to allow district residents who have not met local diploma requirements, but who have earned a GED through an approved program of study, to be recognized at graduation. Under this policy, respondent offered petitioner the opportunity to enter and exit at the end of the processional of graduates, sit in a reserved seat in the front row of visitors, stand and receive public recognition as a recipient of a GED and be listed in the graduation program as a recipient of a GED.

Petitioner commenced this appeal on May 10, 1995 and requested a stay to allow her to participate in the graduation ceremony. On June 5, 1995, Commissioner Sobol denied that request.

Respondent contends that the petition must be dismissed because it is untimely, moot and fails to state a claim. An appeal to the Commissioner of Education must be commenced within 30 days of the decision or act complained of, provided that the Commissioner may excuse a delay in commencing an appeal for good cause shown (8 NYCRR 275.16). This appeal was commenced on May 10, 1995, more than 30 days from respondent's denial of petitioner's request to participate in the graduation ceremony, and more than 30 days from respondent's approval of a special GED policy. Petitioner maintains that her delay should be excused, however, because she did not understand the appeal process. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of a Child with a Disability, 33 Ed Dept Rep 672; Application of Johnson, 32 id. 458; Appeal of Pitney Bowes, Inc., 31 id. 290; Appeal of Casid, 30 id. 332). I find no evidence of unusual circumstances in this case. Accordingly, the appeal must be dismissed as untimely.

The appeal is also moot. It is well settled that the Commissioner will only determine matters which are in actual controversy and will not ordinarily render a decision upon a statement of facts which no longer exists or which subsequent events have laid to rest (Appeal of Cataldo, 34 Ed Dept Rep 433; Appeal of Stopka, 34 id. 157; Appeal of Strada, 33 id. 358). Since the graduation ceremony took place on June 25, 1995, and since the only relief petitioner sought was the right to participate in that ceremony, I do not reach the merits of respondent's decision.