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Decision No. 13,598

Appeal of ADAM E. MILLER from action of the Board of Education of the Baldwin Union Free School District regarding student discipline.

Decision No. 13,598

(April 23, 1996)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Baldwin Union Free School District ("respondent") regarding his suspension for truancy. The appeal must be dismissed.

Petitioner alleges that between November 1991 and May 1994, respondent imposed on him six one-day, in-school suspensions for truancy. He alleges that although the suspension room was supervised by a certified teacher, no meaningful education was offered. Petitioner withdrew from respondent's school district on June 23, 1995, and subsequently received a high school equivalency diploma. He appealed these suspensions to respondent on October 2, 1995. By letter dated November 7, 1995, respondent denied petitioner's request to expunge the suspensions from his record. This appeal ensued.

Petitioner argues that respondent's actions violate the principles established in King v. Farmer (102 Misc.2d 610) regarding suspensions. Petitioner seeks a determination that the suspensions were unlawful in light of King, that respondent expunge all records of the suspensions, and that the Commissioner order respondent to revise their policies to provide meaningful education during in-school suspensions.

Respondent contends that King applies only to out-of-school suspensions imposed pursuant to Education Law '3214 and is not applicable to in-school suspensions where substantially equivalent instruction is offered. Respondent also raises a number of defenses, including timeliness and failure to state a claim upon which relief can be granted.

As a threshold matter, petitioner's claim must be dismissed because it is untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). Petitioner contends that he is appealing respondent's November 7, 1995 refusal to expunge his suspension records and that he commenced this appeal in a timely manner on November 28, 1995. However, the actions forming the basis of petitioner's complaint -- the suspensions -- occurred between November 1991 and May 1994, more than 30 days prior to the filing of this appeal. The time within which an appeal must be commenced may not be extended by requests for reconsideration (Appeal of Stein, 25 Ed Dept Rep 181; Matter of Tripi, 21 id. 349). To find otherwise would render the timeliness requirement meaningless. Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it must be dismissed on its merits. Education Law '3214(1) defines "a minor under seventeen years of age . . . who is an habitual truant . . . or is irregular in [his] attendance" as a school delinquent. However, students ages six through 16 are subject to compulsory education laws (Education Law '3205). Section 3214(2) therefore authorizes schools to "establish schools or set apart rooms in public school buildings for the instruction of school delinquents." Based on these statutes, King holds that although "a student 16 years of age who is habitually truant, or is irregular in school attendance cannot be suspended, expelled or `dropped' from school rolls," separate equivalent instruction may be provided. Thus, respondent's in-school suspension, in and of itself, does not violate King or the applicable provisions of the Education Law.

Petitioner also contends that the alternative education he was provided was inadequate. Whether a program offers substantially equivalent instruction must be decided on a case-by-case basis. The provision of study halls does not satisfy the obligation to provide alternative instruction (Appeal of Forster, 31 Ed Dept Rep 443; Appeal of Ackert, 30 id. 31). Additionally, the assignment of homework, with little else, is insufficient (Matter of Malpica, 20 Ed Dept Rep 365). Petitioner makes bare allegations regarding the adequacy of respondent's in-school suspension program, but fails to provide any supporting evidence. In an appeal before the Commissioner, a petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR '275.10; Appeal of Maillard, 35 Ed Dept Rep 229; Appeal of Silano, 35 id. 190). Based on the foregoing, I find that petitioner has failed to sustain his burden of proof on this claim.