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Decision No. 15,368

Appeal of B.S., on behalf of her son U.B., from action of the Board of Education of the Valley Stream Central High School District regarding student discipline.

Decision No. 15,368

(March 6, 2006)

Long Island Advocacy Center, attorneys for petitioner, Diane E. Inbody, Esq., of counsel

Guercio & Guercio, attorneys for respondent, John P. Sheahan, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Valley Stream Central High School District ("respondent") to suspend her son, U.B. The appeal must be dismissed.

On January 3, 2005, U.B., a student in respondent's high school, was involved in a fight with another student. Respondent 's principal suspended U.B. for five days, January 4 through 10. A notice of suspension was mailed to petitioner on January 4, 2005.

A superintendent's hearing was held on January 12, 2005. It was adjourned at petitioner's request and reconvened on February 1, 2005. The hearing officer sustained the disciplinary charges against U.B., reviewed his anecdotal record, and recommended that U.B. be suspended for a total of 45 days. By letter dated February 2, 2005, respondent's superintendent adopted the recommendation and suspended U.B. until March 15, 2005. U.B.'s father appealed the suspension to respondent. By letter dated February 9, 2005, respondent denied the appeal. This appeal ensued.

Petitioner claims that she and her son were denied due process in that respondent failed to provide her with proper and timely written notice of the suspension and failed to honor her request for an informal conference before the suspension. She also asserts that the imposition of a 45-day suspension for the offense was arbitrary and capricious and that she was not notified that respondent was hearing her appeal. She asks that the suspension be expunged from her son's records.

Respondent contends that the record supports the finding of guilt and penalty. It further alleges that the appeal is untimely and that petitioner failed to exhaust her administrative remedies concerning the five-day suspension.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Petitioner initially attempted to commence this appeal by serving respondent's assistant superintendent on March 10, 2005. My Office of Counsel returned the petition to petitioner due to lack of verification and lack of an affidavit of personal service. The petition was not properly served until March 24, 2005, more than 30 days after respondent's February 9, 2005 determination. Petitioner offers no good cause for this delay. Accordingly, the appeal must be dismissed (Appeal of M.G., 41 Ed Dept Rep 58, Decision No. 14,614; Appeal of Blake, 37 id. 250, Decision No. 13,852).

In light of this disposition, I need not address the parties' remaining contentions.