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Decision No. 14,842

Appeal of J.L., on behalf of her son A.B., from action of the Board of Education of the South Colonie Central School District regarding student discipline.


Daniel P. O"Leary, Esq., attorney for petitioner


Tabner, Ryan and Keniry, attorneys for respondent, William F. Ryan, Jr., Esq., of counsel



(February 28, 2003)


MILLS, Commissioner.--Petitioner appeals a decision of the Board of Education of the South Colonie Central School District ("respondent") to suspend her son, A.B., from school.  The appeal must be dismissed.

On November 7, 2001 a teacher witnessed A.B. stabbing a piece of paper with a pen and pretending to shoot at students outside of the classroom.  By letter dated November 8, 2001, the school principal notified petitioner that A.B. had been seen "mimicking sniping."  He stated that he was suspending A.B. for three days, commencing November 9, and that A.B. was to attend an alternative academic program at the district"s high school during his suspension.  The principal"s letter further indicated that any future infractions would result in an out-of-school suspension for A.B.  Finally, the principal"s letter advised petitioner that she could request an informal conference with him at which she could question the complaining witnesses about the events which resulted in A.B."s suspension.  The record does not state how the November 8 letter was delivered to petitioner. Apparently the principal believed that another staff member notified petitioner of the suspension when she picked up A.B. at school on November 8.

On November 9, 2001, A.B. reported to the middle school, rather than to his alternative placement.  The principal ordered A.B. to wait in the school"s "time out" room until his mother could be contacted to pick him up.  A.B. was instructed to remain in the room and not to use the telephone.  However, A.B. left the room and placed a telephone call to his mother.

By letter dated November 9, 2001, the principal notified petitioner that he had extended A.B."s suspension by two days and that he was referring the matter to respondent"s superintendent for a disciplinary hearing.  The principal"s letter further advised that petitioner could request an informal conference with the principal at which she could question the complaining witnesses about the events which resulted in the second suspension.  Again, the record does not indicate the method by which this letter was delivered.

By letter dated November 13, 2001, respondent"s superintendent informed petitioner that he would convene a disciplinary hearing on November 16, 2001.  He alleged that on November 9 A.B. "did not follow directions, showed disregard for authority, and was insubordinate."  The superintendent"s letter advised petitioner of her right to be represented by counsel, to question witnesses and to present witnesses and other evidence at the hearing.  Petitioner and A.B. were represented by counsel at the hearing.

By letter dated November 19, 2001, respondent"s superintendent notified petitioner that he was suspending A.B. for the remainder of the 2001-2002 school year.  He noted that A.B. admitted leaving the time out room to use the telephone after he was instructed not to.  He stated that A.B. has "a long history of insubordinate behavior" and "has had sufficient opportunity to improve." Respondent affirmed the superintendent"s decision to suspend A.B. on December 11, 2001.  Petitioner"s counsel was notified of respondent"s determination by letter dated December 13, 2001.

Petitioner claims that A.B."s alleged conduct did not warrant the penalty imposed; that respondent did not adhere to the requirements of the Education Law in suspending A.B.; that the superintendent"s hearing was conducted in a manner that deprived A.B. of due process; and that good cause exists for me to consider this appeal despite the fact that the petition was served more than 30 days after the board rendered its decision in this matter.  Respondent asserts that petitioner fails to state a cause of action; that the appeal should be dismissed as untimely; and that proper notice was given to petitioner of her procedural due process rights with regard to A.B."s suspension.

An appeal to the Commissioner of Education pursuant to Education Law "310 must be initiated within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16).  An appeal must be initiated by personal service of the petition upon each named respondent, in accordance with "275.8(a) of the Commissioner"s Regulations, which provides in pertinent part:

If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

     Petitioner"s counsel attempted to commence this appeal by mailing a petition to respondent and to my office on or about January 16, 2002.  My Office of Counsel advised him that the petition did not comply with the Commissioner"s regulations in several respects, including service.  The record contains no indication that the petition mailed to respondent on or about January 16, 2002 was properly served upon respondent.  As a result, I must conclude that no appeal was commenced on that date, and that the time for instituting an appeal under "275.16 of the Commissioner"s Regulations continued to run while petitioner"s counsel prepared to serve the petition on February 25, 2002 (Appeal of M.G., 41 Ed Dept Rep ____, Decision No. 14,614).  Because there was no proper service upon respondent within 30 days of the December 13, 2001 notice of respondent"s determination, the appeal cannot be deemed to have commenced on January 16, 2002 as petitioner contends (Appeal of M.G., supra).  Accordingly, the appeal commenced on February 25, 2002 must be dismissed as untimely (Appeal of M.G., supra; Appeal of Blake, 37 Ed Dept Rep 250, Decision No. 13,852).

While I am dismissing this appeal on procedural grounds, I note that respondent apparently failed to comply with the provisions of the Education Law and the Regulations of the Commissioner regarding student discipline.  Education Law "3214(3)(b)(1) provides that in the case of a suspension up to five days in length:

the suspending authority shall provide the pupil with notice of the charged misconduct...The pupil and the person in parental relation to the pupil shall, on request, be given an opportunity for an informal conference with the principal at which the pupil and/or person in parental relation shall be authorized to present the pupil's version of the event and to ask questions of the complaining witnesses. The aforesaid notice and opportunity for an informal conference shall take place prior to suspension of the pupil unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process...(emphasis added).

Further, "100.2(l)(4) of the Commissioner"s Regulations provides in pertinent part:

When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be suspended from school. Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension..." (emphasis added).

     The record does not indicate that either the notice dated November 8, 2001 or the notice dated November 9, 2001 was provided to petitioner before her son was suspended. Nor does it show that petitioner was afforded an opportunity for an informal conference prior to A.B."s suspension. Respondent did not affirmatively allege that A.B."s presence in the school posed a continuing danger or an ongoing threat of disruption to the academic process.  Moreover, the record does not indicate that respondent"s written notice was provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension, as required by "100.2(l)(4) of the Commissioner"s Regulations.  Respondent is reminded of the need to fully comply with all laws and regulations governing the discipline of students in the future.