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Decision No. 16,192

Appeal of C.B. and B.R., on behalf of their daughter E.B.R., from action of the Board of Education of the City School District of the City of Oswego regarding student discipline.

Decision No. 16,192

(January 10, 2011)

Michael J. Stanley Law Office, attorney for respondent, Michael J. Stanley, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal a determination of the Board of Education of the City School District of the City of Oswego (“respondent”) regarding the suspension of their daughter, E.B.R.  The appeal must be dismissed.

In October 2009, E.B.R. was suspended for the remainder of the 2009-2010 school year for making a bomb threat.  Beginning in November 2009, petitioners complained to district staff regarding the sufficiency of the alternative instruction provided to their daughter.  Unsatisfied by the district’s response, petitioners, by letter dated February 15, 2010, appealed to respondent and sought to have their daughter reinstated or placed on in-school suspension.  By letter dated March 9, 2010, respondent upheld the suspension but modified the alternative instruction provided to E.B.R. After complaining further to respondent’s board president, additional tutoring time was subsequently provided to E.B.R.  This appeal ensued.

Petitioners contend that respondent failed to provide adequate alternative instruction to E.B.R. and seek to have her reinstated to school.  Petitioners also ask that respondent be ordered to substantially revise its policy for educating suspended students.

Respondent contends that the petition is defective because it is unverified and untimely.  Respondent further maintains that the petition fails to state a claim or set forth a clear demand for relief. Respondent asserts that petitioners were afforded all requisite due process, that the penalty imposed was proportionate to the offense, and that the alternative instruction provided was appropriate.

Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).

The petition submitted to my Office of Counsel contains a verification which was notarized on April 13, 2010, which is one day after the petition was served on respondent.  It is well settled that where, as here, a petitioner is proceeding without the representation of counsel, a liberal interpretation of the rules is appropriate, particularly when there is no prejudice to the opposing party (Appeal of Barnes, 50 Ed Dept Rep ___, Decision No. 16,093).  Accordingly, while petitioners should have provided respondent with a copy of their verification, I will not dismiss their appeal on this basis alone (Appeal of Barnes, 50 Ed Dept Rep ___, Decision No. 16,093; Appeal of Carangelo, 49 id. 217, Decision No. 16,006).  Furthermore, although it appears that petitioners did not verify their petition prior to its service, I find this defect to be deminimus and decline to dismiss it on that basis.

Respondent claims that the appeal should be dismissed because it was commenced more than 30 days after its March 9, 2010 determination.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  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 K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). The record does not indicate when petitioners actually received the determination.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be March 15, 2010.  Petitioners thus had to commence their appeal by on or before April 14, 2010, which they did.  Consequently, I will not dismiss the appeal as untimely.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioners commenced this appeal in March 2010, just two months prior to the expiration of the term of the suspension.  The appeal must be dismissed as moot to the extent it seeks reinstatement because the suspension has already been served.  Similarly, the appeal is also moot to the extent that petitioners seek relief on their claim that respondent failed to provide E.B.R. with adequate alternative instruction during the suspension period (Appeal of C.M., 50 Ed Dept Rep ___, Decision No. 16,142; Appeal of D.C., 41 id. 277, Decision No. 14,684; Appeal of Harlan, 40 id. 309, Decision No. 14,488).  The appeal is not moot, however, to the extent that petitioners ask that respondent’s policy on alternative instruction be substantially revised.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Alternative instruction must be substantially equivalent to that received by the student prior to the suspension (Appeal of R.S., 48 Ed Dept Rep 215, Decision No. 15,841; Appeal of W.H., 45 id. 96, Decision No. 15,269; Appeal of D.F.B., 43 id. 496, Decision No. 15,064), and equivalency will be determined on a case-by-case basis (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883).  Previous Commissioner’s decisions have found that two hours per day of alternative instruction may fulfill a district’s obligation under the Education Law (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883; Appeal of Camille S., 39 id. 574, Decision No. 14,316).  According to the petition, respondent’s policy provides that “When a student has been suspended and is of compulsory attendance age, immediate steps shall be taken to provide alternate instruction which is on an equivalent nature to that provided in the student’s regularly scheduled classes.”  Petitioners ask that I order respondent to “substantially revise its policy for educating suspended students.” However, they have failed to articulate the alleged deficiencies in respondent’s policy or demonstrate how the policy is arbitrary, capricious or illegal.  Accordingly, this claim must be dismissed (seeAppeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371).