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Decision No. 15,867

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Bay Shore Union Free School District regarding student discipline.

Decision No. 15,867

(February 9, 2009)

Long Island Advocacy Center, Inc., attorneys for petitioner, Wendy Gildin, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, a student with a disability, by the Board of Education of the Bay Shore Union Free School District (“respondent”).  The appeal must be dismissed.

Petitioner’s son is 18 years old and a student at respondent’s high school. Following a hearing held in March and April 2008, petitioner’s son was suspended until on or about January 26, 2009, the first day of the second semester of the 2008-2009 school year.

By letter dated March 26, 2008, the Long Island Advocacy Center (“LIAC”), appealed the student’s suspension to respondent, which denied the appeal.  On May 15, 2008, a district employee delivered notice of respondent’s determination (“notice”) to petitioner’s residence.  According to respondent, a copy of the notice was faxed to LIAC the same day; according to petitioner, the copy was faxed on June 16, 2008.  This appeal ensued.

Petitioner complains about the manner in which the notice was delivered.  She also argues that the hearing officer’s decision was not supported by substantial evidence.  Petitioner asks that I dismiss the charges and allow the student to return to school.

Respondent argues that the appeal must be dismissed as untimely and for failure to state a claim upon which relief may be granted.  Respondent also maintains that the student’s suspension is supported by the record.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347). 

Petitioner admits that on May 15, 2008, a district employee delivered a copy of the notice to her residence and she does not deny receiving such notice.  While the parties dispute when a copy was faxed to LIAC, it is undisputed that petitioner did not commence this appeal until August 1, 2008, more than 30 days after the latest alleged date of delivery.  Petitioner urges that I allow the late filing of this appeal because respondent failed to personally serve her with the notice in accordance with §275.8(a) of the Commissioner’s regulations.  Contrary to petitioner’s assertion, the manner of delivery here was permissible and the section cited by petitioner is inapplicable to the notice.  Petitioner admits that the notice was delivered to her residence on May 15, 2008, does not deny that it she received it on that date, and offers no good excuse for her delay in commencing this appeal.  Therefore, the appeal must be dismissed as untimely.

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