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Decision No. 15,838

Appeal of K.S. and K.S., on behalf of A.S. and H.S., from action of the New York City Department of Education regarding student discipline.

Decision No. 15,838

(October 7, 2008)

Tejinder Singh Bains, Esq., attorney for petitioner

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Jane R. Goldberg, Esq., attorney for petitioners

MILLS, Commissioner.--Petitioners appeal the decision of the New York City Department of Education (“respondent”) suspending A.S. and H.S. on the charge of possession of a weapon.  The appeal must be dismissed.

During the 2005-2006 school year, A.S. and H.S. were ninth grade students at Richmond High School.  On December 13, 2005, both students were charged with possessing a dangerous weapon, a knife known as a “kirpan.”

By notices dated December 15, 2005, the regional superintendent (“superintendent”) suspended A.S. and H.S. effective December 16, 2005 and scheduled a hearing for December 22, 2005.  A consolidated superintendent’s hearing was held on December 22, 2005.

By letters dated December 23, 2005, the superintendent informed petitioners that the suspensions of A.S. and H.S. were sustained and that the students would be reinstated effective December 23, 2005.  By letters dated January 19, 2006, petitioners were provided with the superintendent’s report of findings and dispositions and notified of their right to appeal to the Chancellor of the New York City Department of Education (“Chancellor”).  By letter dated February 2, 2006, petitioners appealed the suspensions to the Chancellor, who by decision dated April 4, 2006, sustained the suspensions.  This appeal ensued.

Petitioners allege that a kirpan is a Sikh ceremonial knife, which they are required to wear under their clothes at all times, and is not a category one weapon as defined in the Chancellor’s regulations.  Petitioners ask that I reverse the Chancellor’s determination.

Respondent alleges that the petition fails to state a cause of action and that the appeal is untimely and moot.  Respondent maintains that a kirpan is a category one weapon and that the Chancellor’s regulations require the suspension of a student in possession of such a weapon. 

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).  Here, the Chancellor’s decision was issued on April 4, 2006 and the petition was served 114 days later, on July 27, 2006.  Petitioners contend that their appeal is timely because they did not receive the Chancellor’s decision until June 27, 2006.  Respondent’s attorney, however, avers that the Chancellor’s decision was mailed to petitioners’ attorney on April 17, 2006.  To support her position, she provides a document from her office mail database and a copy of the cover letter to petitioners’ attorney dated April 4, 2006, accompanying the decision.  Respondent’s attorney also avers that a copy of the decision was mailed to five other interested persons at the same time that it was mailed to petitioners’ attorney, and that each of these persons received the decision in April 2006.  Finally, respondent’s attorney avers that the copy of the decision mailed to petitioners’ attorney was not returned to her office as undeliverable.  Based on the foregoing facts, petitioners’ delay in filing cannot be excused and their petition must be dismissed as untimely.

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