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Decision No. 13,586

Appeal of T.B., on behalf of her son, from action of Community School District 28 of the City School District of the City of New York regarding a student placement.

Decision No. 13,586

(March 28, 1996)


Petitioner appeals respondent Community School District's placement of her son in P.S. 160 and its refusal to place the student in either J.H.S. 157 or P.S. 101. The appeal must be dismissed.

Petitioner and her son reside in Community School District 28 of the City School District of the City of New York ("respondent"). In June 1995, petitioner submitted an application to have her son transferred to J.H.S. 157 for the 1995-96 school year. Respondent's community superintendent denied her application on July 20, 1995 on the grounds that there was a lack of available space for her son. Thereafter, on September 6, 1995, petitioner submitted an application to have her son placed in P.S. 101. This application was denied on September 8, 1995 because of "overcrowding" and the need to "maintain balance" in the district's classroom registers. On September 11, at a meeting initiated by petitioner, the community superintendent refused to permit the student to attend P.S. 101. In a letter dated September 12, 1995, petitioner asked the community school board to review the community superintendent's decision. By letter dated October 30, 1995, the community superintendent informed petitioner that "the reasons for the original denial are still in effect" and that those reasons included: that P.S. 160 is a safe school environment; that the placement of petitioner's daughter in a special education program does not automatically entitle petitioner's son to admittance to the same school, because to do otherwise would result in overcrowding; and that petitioner's son has received an "unsatisfactory" rating in social behavior and it is district policy not to give a variance to such students. Thereafter, petitioner commenced this appeal by service of her petition on January 3, 1996.

Petitioner alleges that respondent's reasons for denying her requests to place her son in P.S. 101 or J.H.S. 157 were inconsistent and based on racial discrimination.

Respondent has not submitted an answer pursuant to 8 NYCRR 275.9 and 275.13, despite being reminded by my Office of Counsel of its obligation to submit an answer. Accordingly, the factual allegations set forth in the petition are deemed to be true statements that have been admitted by respondent (8 NYCRR 275.11; Appeal of Walker, 31 Ed Dept Rep 30).

Nevertheless, I am constrained to dismiss the petition for untimeliness. An appeal to the Commissioner must be commenced within thirty days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 275.16). Petitioner appeals respondent's July 20, 1995 denial of her application to transfer her son to J.H.S. 157 and the September 11, 1995 denial of her request for a variance to place her son in P.S. 101. Petitioner's appeal is clearly untimely as to respondent's July 20 decision concerning J.H.S. 157. In addition, whether measured from respondent's notice to petitioner dated September 8, 1995, the community superintendent's oral refusal on September 11, 1995 respondent's notice dated October 13, 1995, or the letter of respondent's community superintendent dated October 30, 1995, the appeal is clearly untimely with respect to her request concerning P.S. 101. Petitioner's explanation that the delay was due to her inability to properly prepare the petition and insufficient funds to hire an attorney are insufficient reasons for me to excuse the appeal's untimeliness. Ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal, except in unusual circumstances (Appeal of Kline, 35 Ed Dept Rep 91), and I find no evidence of unusual circumstances in this case. Furthermore, it is not necessary to retain an attorney in order to bring an appeal, and the fact that petitioner was able to bring this appeal pro se contradicts her assertion that an attorney's services were needed.

Although I am dismissing the appeal, I must admonish respondent for its failure to submit an answer.