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Decision No. 16,492

Appeal of Y.S., on behalf of C.N., from action of the Board of Education of the Westbury Union Free School District regarding student discipline.

Decision No. 16,492

(June 27, 2013)

Jaspan Schlesinger, LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Westbury Union Free School District (“respondent”), to suspend her daughter “C.N.”, from school. The appeal must be dismissed.

During the 2011-2012 school year, C.N. attended respondent’s high school. On June 12, 2012, she arrived at the district’s administration building to meet with the superintendent to discuss a missing pair of sneakers. The superintendent was unavailable, and C.N. was told that she would have to make an appointment to meet with the superintendent at a later date. Prior to leaving the building, C.N., upset over her lost sneakers, allegedly stated that she “was going to hurt someone and they may leave in a body bag.” On June 18, 2012, the principal suspended C.N. for five (5) days for disorderly conduct, harassment and/or bullying, inciting violence and/or menancing and insubordination based on her June 12, 2012conduct. A superintendent’s hearing was held on June 22, 2012, at which the student did not dispute the charged conduct. By letter dated June 25, 2012, the superintendent notified petitioner of his determination that C.N. was guilty of the conduct charged and was suspended through June 30, 2013. By letter dated July 11, 2012, petitioner appealed the superintendent’s decision to respondent. Respondent considered the appeal on July 19, 2012 and, by letter dated July 20, 2012, upheld the superintendent's decision and C.N.’s suspension.

It is unclear whether Y.S. or C.N. brings this appeal. Although verified by Y.S., the petition consists of statements by C.N. who argues, among other things, that the superintendent overheard a personal conversation, and that she never made any threat toward the superintendent. She asks that the suspension be overturned and that she be allowed to finish her classes and receive her diploma.

Respondent maintains that the determination to suspend C.N. is supported by the record and that the penalty is appropriate and not arbitrary, capricious or an abuse of discretion. Respondent further contends that the appeal must be dismissed as untimely and for improper service.

An appeal to the Commissioner must be commenced within30 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).

Petitioner challenges respondent’s July 20, 2012 decision to suspend C.N. However, she did not commence this appeal until January 31, 2013, more than six months later. Petitioner sets forth no explanation for the delay in the petition. Consequently, the appeal is untimely and must be dismissed.

The appeal must also be dismissed for improper service. Section 275.8(a) of the Commissioner’s regulations requires that a copy of the petition, together with all supporting papers, must be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally be delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530,Decision No. 15,939; Appeal of Naab, 48 id. 339, DecisionNo. 15,877).

Respondent asserts that it was not served with a copy of the petition, but was served only with the notice of petition. Respondent alleges that it received a copy of the verified petition from my Office of Counsel. Petitioner submits no reply to refute respondent’s contentions. Therefore, I find that the appeal must alsobe dismissed for improper service.

Because I am constrained to dismiss the appeal on procedural grounds, I need not address the parties ‘remaining contentions.