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Decision No. 15,495

Appeal of J.D., on behalf of his daughter B.D., from action of the Board of Education of the Unadilla Valley Central School District, Superintendent Rexford A. Hurlburt, Jr. and Middle School Principal Gene Chilion regarding student discipline.

Decision No. 15,495

(December 8, 2006)

Hogan, Sarzynski, Lynch, Surowka & DeWind, L.L.P., attorneys for respondents, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Unadilla Valley Central School District (the “board”), its superintendent, and its middle school principal (collectively “respondents”) to suspend his daughter, B.D.  The appeal must be dismissed.

On February 10, 2006, B.D., a student in the district’s middle school, returned from school with a discipline note that was illegible.  B.D. told petitioner that she had been suspended for one day because she and a classmate had blown their clarinets in each other’s ears.  Although the record is somewhat unclear, it appears that the suspension imposed was an in-school suspension.

The parties dispute what happened next.  Petitioner claims that on February 13, 2006, his wife met with the principal to discuss B.D.’s suspension.  Respondents assert that petitioner was present at this meeting and that he was provided with a suspension notice at that time.  Respondents also claim that on February 14, 2006, the principal informed petitioner by telephone that, after their meeting and his review of all the information, he was affirming B.D.’s suspension.

B.D. served the suspension on February 15, 2006.  On the afternoon of February 15, 2006, petitioner received a letter in the mail, dated February 13, 2006, from the Dean of Students notifying him of the suspension.

On March 15, 2006, petitioner’s attorney sent an email to respondents’ attorney to determine whether the suspension had been expunged from B.D.’s record.  By letter dated March 17, 2006, respondents’ attorney replied that B.D.’s record would not be expunged.  Thereafter, petitioner’s attorney requested reconsideration.  In a May 3, 2006 telephone conversation, respondents’ attorney again told petitioner’s attorney that respondents’ actions were appropriate and the matter was considered closed.  This appeal ensued.

Petitioner asserts that the written suspension notice, received on February 15, 2006, was untimely and insufficient, in violation of Education Law §3214 and §100.2(d) of the Commissioner’s regulations.  He claims that, as a result, he was denied his right to an informal conference with the principal before the suspension was imposed.  Petitioner requests that B.D.’s record be expunged.

Respondents contend that the appeal is untimely. Respondents also assert that Education Law §3214 and §100.2(d) of the Commissioner’s regulations do not apply to in-school suspensions.

Respondents assert that the appeal must be dismissed as untimely whether the date of the suspension decision is calculated from the day B.D. served her suspension (February 15, 2006) or from the date of their attorney’s letter stating that B.D.’s record would not be expunged (March 17, 2006).  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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).  Petitioner’s appeal was commenced on June 1, 2006, well over 30 days after both of these events.  While petitioner sought reconsideration of respondents’ decision, a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012; Appeal of Williams, 42 id. 260, Decision No. 14,846).  Petitioner offers no reason for his delay.  Consequently, the appeal is untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In-school suspensions are not governed by Education Law §3214 and do not require a full hearing (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794).  Procedures governing in-school suspensions need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794; Appeal of Denis, 40 id. 306, Decision No. 14,487; Appeal of Michael J.A., 39 id. 501, Decision No. 14,293).  Notwithstanding the parties’ conflicting accounts, petitioner has failed to show that he was denied a fair opportunity to discuss B.D.’s suspension with the principal.  Petitioner acknowledges that his wife met with the principal on February 13, 2006, to discuss the conduct that led to B.D.’s suspension on February 15, 2006.  On the record before me, I find no basis to overturn respondents’ decision.