Appeal of S.T. and M.T., on behalf of their daughter A. T., from action of the New York City Department of Education regarding Regents examinations.

Decision No. 16,484

(June 24, 2013)

Rakower Lupkin PLLC, attorneys for petitioners, Michael C. Rakower, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Gloria M. Yi, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal a determination of the New York City Department of Education (“respondent”) invalidating their daughter’s scores on certain June 2012 Regents examinations. The appeal must be dismissed.

Petitioners’ daughter is currently a senior at Stuyvesant High School (“Stuyvesant”). In June 2012, she took and received scores on Regents examinations in Physical Setting/Physics (“Physics”), Comprehensive English (“English”) and United States History and Government (“U.S. History”).

After discovering that numerous students had shared examination questions and answers via text message during the June 2012 examination period, Stuyvesant officials conducted an investigation. As part of the investigation, all of the students whose names or phone numbers were identified as having communicated via text message during the examination period were provided the opportunity to present their side of the incident and prepare a written statement. On June 27, 2012, A.T. provided a written statement indicating, among other things, that she was aware of the cheating scheme, that her cell phone was off during the Physics examination, and that she received text messages relaying answers to the Physics examination when she turned her phone on after she left the examination.

Upon learning of the cheating scheme, respondent’s Office of Assessment conducted an investigation which included a review of the information gathered by Stuyvesant officials. Respondent determined that the integrity of the examination results for the students involved in the cheating scheme had been undermined. On July 9, 2012, respondent announced its determination to invalidate the examination scores of the students involved and to allow such students to retake the examinations.

After respondent made its determination, respondent’s representatives attempted to contact by telephone parents of students whose scores had been invalidated. In addition, Stuyvesant’s principal advised affected students by letter dated July 13, 2012 that the examination results were cancelled and that they were registered to take the English and U.S. History Regents examinations in August 2012. ¹   Also in July 2012, petitioners and an assistant principal at Stuyvesant communicated via telephone and electronic mail regarding the invalidation of the examination scores and the administration of the August 2012 Regents examinations.

Petitioners’ daughter was out of the country for the summer and did not take the English and U.S. History Regents examinations in August 2012. She returned to school in fall 2012 for the 2012-2013 school year.   ²

On October 5, 2012, petitioners commenced an Article 78 proceeding challenging, among other things, respondent’s determination to invalidate A.T.’s Regents examination scores. On October 9, 2012, the court determined that the issue was not ripe for judicial review as the administrative process was not exhausted. This appeal ensued. Petitioners’ request for interim relief was denied on October 23, 2012.

Petitioners allege that respondent’s decision to cancel their daughter’s Regents examination scores violated §102.4 of the Commissioner’s regulations, respondent’s Bill of Student Rights and due process, and was arbitrary, capricious and constituted an abuse of discretion. They seek a determination that A.T. did not participate in any cheating scheme with respect to the Regents examinations, an order directing respondent to accord official record status to the results of A.T.’s Regents examinations and an order directing respondent to expunge all records concerning measures taken or contemplated against A.T. with respect to the cheating scheme.

Respondent argues that the appeal is untimely and should be dismissed, that petitioners have not demonstrated that they are entitled to the relief requested and that its actions were not arbitrary or capricious and were in all respects proper and in conformity with all applicable laws and regulations.

Initially, I will address the procedural issues. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent asserts that the petition is untimely because it was not commenced within 30 days after respondent made its determination to invalidate the examination scores and informed the implicated students. In their reply, petitioners assert that their appeal is timely and that respondent’s arguments in support of its affirmative defense should be rejected.

I am constrained to dismiss the appeal 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 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).

In the petition, petitioners offer several excuses for their delay, including that they relied on communications with respondent allegedly advising them that they could not pursue further action until September 2012 and that they were not advised of their right to appeal respondent’s determination until October 2012. I have consistently held that, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).

In their reply, petitioners offer additional reasons for their delay. They assert that the 30-day period within which an appeal must be taken begins when an “official determination” announcing the decision to be appealed is received by the relevant party. Relying on Appeal of Lease, 39 Ed Dept Rep 215, Decision No. 14,219, petitioners assert that they never received notice of an “official determination” by respondent and that, when no such official determination is shown to have been received, the Commissioner has been unwilling to dismiss the appeal as untimely. They claim that the July 2012 telephone call from respondent’s representative did not constitute receipt of an official determination. They also claim that they never received the July 13, 2012 letter from Stuyvesant’s principal advising affected students that the examination results were cancelled and that they were registered to take the English and U.S. History Regents examinations in August 2012.

Petitioner’s reliance on Appeal of Lease (39 Ed Dept Rep 215, Decision No. 14,219) is misplaced. Petitioners in that case were unsuccessful in obtaining a definitive response from respondent regarding their request to terminate the summer reading program. Here, as acknowledged in the petition, on July 9, 2012, respondent made its determination to invalidate the examination scores of the students involved in the cheating scheme and to allow such students to retake the examinations. Further, while petitioners claim that they did not receive the July 13, 2012 letter from Stuyvesant’s principal, and therefore did not receive notice of respondent’s determination, they admit receiving the telephone call from respondent’s representative. Moreover, the record shows that in July 2012 petitioners and an assistant principal at Stuyvesant communicated via telephone and electronic mail regarding the invalidation of the examination scores and the administration of the August 2012 Regents examinations. Finally, petitioners admit that “[o]n or before early August 2012, the results of [A.T.’s] Regents Exams were cancelled, and at the same time [her] online access to those exam scores was removed.”

Petitioners also assert in their reply that they filed their appeal within a reasonable time after dismissal of their Article 78 proceeding and that their appeal should not be dismissed as untimely. They rely on Commissioner’s decisions holding that an unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to commence a timely appeal with the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of Donato, 41 Ed Dept Rep 246, Decision No. 14,677; Appeal of Debowy, 41 id. 161, Decision No. 14,648; Appeal of R.W., 40 id. 671, Decision No. 14,580). However, there is nothing in the Commissioner’s regulations that automatically tolls the time to commence an appeal under such circumstances. Moreover, as noted above, 8 NYCRR §275.16 requires that the reason for failing to commence an appeal within the time specified must be set forth in the petition, not in the reply (see e.g., Appeal of Gmelch, 32 Ed Dept Rep 167, Decision No. 12,794). Accordingly, the appeal must be dismissed as untimely.

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

THE APPEAL IS DISMISSED.

END OF FILE.

 

 

^[1]   The Regents Physics examination was not offered in August 2012.

 

^[2]  At the beginning of the 2012-2013 school year, disciplinary proceedings were instituted against the students implicated in the cheating scheme, including A.T. The disciplinary action is not at issue in this appeal.