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Decision No. 16,566


 Appeal of J.M., on behalf of her son J.M.M., from action of the West BabylonUnion Free School District regardingstudent discipline.

Decision No. 16,566

(October 15, 2013)

Van Nostrand & Martin, attorneys for respondent, William C.Morrell, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the West Babylon Union Free School District(“respondent”) to suspend her son. The appeal must be dismissed.

During the 2010-2011 school year, petitioner’s son,J.M.M., was a 10-year-old fifth grade student in respondent’s district. On the morning of November 9, 2010,the mother of a female student reported to the school principal that J.M.M. had “sexually harassed” her daughter, and that, according to her daughter, the harassment had been going on for some time prior to notifying her mother on November 8, 2010.

According to respondent, the female student was interviewed on November 9, 2010 by the school psychologist, who documented her findings and the allegations against

J.M.M. in an unsigned, unsworn report submitted with respondent’s answer. Specifically, the female student claimed, among other things, that J.M.M. allegedly “pok[edher] butt” with his pencil “every day of the week” and the previous week “and two times he’s pretended to touch [her]front” with it; that J.M.M. “touc[hed] himself [in his private area] and then he’d wipe it on [her] and then put his hand on [her] arm, then one time he put his hand on[her] butt”; that he smack[ed her] butt with a ruler”; and that, in the library, he kept “squeezing [her leg] and rubbing her back” even though she repeatedly told him to stop. The principal interviewed another male student who apparently witnessed the incidents. According to respondent, the male witness corroborated many of the statements by the female student, and added that he saw

J.M.M. “grab his crotch and then grab [the female student’s] elbow and shoulder” and that he saw J.M.M.


“bouncing up and down in front of [the female student] in a sexual manner while in his seat.”

According to petitioner, at approximately 11:30 a.m. on November 9, 2010, the principal called J.M.M. to his office to discuss the allegations in the presence of the school psychologist. According to respondent, J.M.M. admitted to the principal and to the school psychologist that he had poked the female student “in the butt” with his pencil; “grabbed her thigh” while in the library; and accidentally “smacked her on the butt with [his] ruler.” According to petitioner, her son admits that he stuck the rubber eraser of his pencil in the female student’s back; that his hand caught her knee when he lost his balance while rocking in his chair; and that he flashed his ruler in her direction as she passed him – but denies all remaining allegations.

The principal called petitioner at approximately 1:50

p.m. that afternoon and advised her that a meeting had been scheduled for the next morning, November 10, 2010, to discuss a disciplinary issue involving J.M.M. According to respondent, some confusion existed as to the legal guardianship of J.M.M., since an affidavit of custody, which was filed with the district in August 2008, apparently gave custody over J.M.M. to petitioner’s sister. As a result, the principal advised petitioner that her son was accused of sexually harassing a female student, and that the details of the conduct could not be discussed over the phone but would be discussed in the meeting the next morning.

On the morning of November 10, 2010, petitioner and her sister met with the principal, who explained how J.M.M. had allegedly “sexually harassed” the female student, and that J.M.M. would be suspended for five days. Petitioner contested the charges and advised the principal that the female student had been making sexual gestures toward

J.M.M. According to respondent, the principal verbally offered petitioner an opportunity to question witnesses and told her that she could interview staff that morning but that there “might be a delay with the [c]hildren as [the principal] would have to notify their parents.” However, petitioner denies that she was ever given an opportunity to question witnesses. The principal then handed petitioner a letter dated November 10, 2010 (“suspension letter”), which stated that

J.M.M. had been suspended from school for five days, starting on November 10, 2010, because J.M.M. “sexually

harassed a female classmate repeatedly with unwelcome physical contact over the last several weeks.” In the suspension letter, the principal scheduled a “reinstatement conference” for November 18, 2010, and advised that petitioner was entitled to have an informal conference regarding the suspension at which time she could “discuss the reasons and ask questions of the staff members who reported this incident.” However, petitioner refused to accept the suspension letter in the office. The letter was later delivered to petitioner’s house and left in the front door, where petitioner admits that she discovered and reviewed it on November 11, 2010, at 8:00 p.m.

By letter dated November 12, 2010, petitioner complained to the principal about the procedures followed regarding the suspension. The principal replied by letter dated November 30, 2010, in which he noted that he “conducted an informal conference regarding this suspension on the morning of November 10, 2010, at 9:00 a.m.” and that at that conference, petitioner was provided information regarding the investigation as well as the suspension letter, which she refused to accept. The principal further requested clarification with regard to J.M.M.’s guardianship, as well as an explanation for J.M.M.’s failure to attend the “reinstatement conference” on November 18, 2010, and his failure to return to school.

According to petitioner, “after many conversations with the Superintendent’s Office,” regarding the principal’s alleged deprivation of J.M.M.’s due process rights, petitioner wrote a letter to the superintendent dated November 23, 2010, in which she requested J.M.M.’Immediate transfer to another building and expungement of the “very offensive” suspension letter from his record. By letter dated December 8, 2010, the superintendent denied petitioner’s transfer request and urged petitioner to return J.M.M. to school. The superintendent also noted, in response to petitioner’s request for expungement, that petitioner had been offered an opportunity “to have the description of the suspension modified to reflect a violation of the Code of Conduct and eliminate the description of the behavior,” but that petitioner had not responded to that offer.

Petitioner subsequently retained an attorney, who attempted to appeal the suspension to respondent on or about December 9, 2010. According to petitioner, her attorney advised her on December 19, 2010, that he had received no response from respondent and that respondent’s

attorney had stated that no appeal exists from a principal’s suspension. This appeal ensued.

Petitioner, pro se, claims that the suspension letter fails to adequately describe the incidents which are the basis for the suspension and that she did not receive timely written notice of the suspension and an opportunity for an informal conference at which she could question the complaining witnesses. Petitioner also claims that J.M.M. had no knowledge of several of the allegations against him; that the allegations are “questionable” due to the friendship between J.M.M. and the complainant and the inconsistent time frame of the complaint; and are unsubstantiated by witnesses. Finally, petitioner claims that J.M.M. was subjected to “cruel and inhumane punishment.” Petitioner requests an order expunging the suspension from J.M.M.’s record and an opportunity to appear in person to discuss the appeal.

Respondent generally denies the allegations and asserts that the petition was not timely filed; that not attending school despite repeated requests; that petitioner was provided sufficient notice of J.M.M.’s suspension; and that the penalty of a five-day suspension was fair and reasonable.

In reply to respondent’s affirmative defense of untimeliness, petitioner contends that respondent should not be given the benefit of such affirmative defense because respondent never responded to petitioner’s appeal to respondent. Petitioner did not respond to the remaining affirmative defenses raised by respondent.

As a preliminary matter, 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). J.M.M. has served his suspension. Therefore, the appeal is moot except to the extent that petitioner seeks expungement of the suspension from J.M.M.’s record (Appeal of E.B. and F.B.,53 Ed Dept Rep, Decision No. 16,545; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).

The appeal must be dismissed 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 4

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).

The record indicates that the principal attempted to hand deliver the suspension letter to petitioner during the November 10, 2010 meeting, but that petitioner refused to accept it. In any event, the suspension letter was personally delivered to petitioner’s residence on the evening of November 10, 2010, and petitioner admits that she received the letter on November 11, 2010. Petitioner therefore had until December 11, 2010, to commence the instant appeal. Petitioner’s affidavit of personal service states that the petition was served on February 4, 2011,more than 30 days after she received the suspension letter. The appeal is therefore untimely.

A delay in commencing an appeal may be excused by the Commissioner for good cause shown (8 NYCRR §275.16).Petitioner requests that I excuse her delay because respondent failed to respond to her former attorney’s appeal on or about December 9, 2010. However, it is well-settled that students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No.15,578; Appeal of M.A., 45 id. 206, Decision No. 15,303).There is no evidence in the record before me to indicate that the district had a policy requiring that short-term suspensions be appealed to respondent prior to the commencement of an appeal under Education Law §310.Indeed, petitioner states in her reply that, on December19, 2010, her attorney informed her that “the attorney [for respondent] said he thought there was no appeal of a principal’s suspension.” Even assuming arguendo that the 30-day period began to run on December 19, 2010,petitioner’s appeal would still be untimely.

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 Balotti, 53 Ed 5

Dept Rep, Decision No. 16,511; Appeal of S.T. and M.T., 52id., Decision No. 16,484; Appeal of Stieffenhofer, 48 Edid. 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821). I find no unusual circumstances sufficient to excuse the delay in this instance, especially since it appears that petitioner was represented by counsel as early as December 9, 2010.(see Appeal of Mayer, 39 Ed Dept Rep 195, Decision No.14,212). Nor do I find petitioner’s assertion that respondent failed to respond to her former attorney’s appeal on her behalf sufficient cause to excuse the delay. Therefore, the appeal must be dismissed as untimely.

Although I am constrained to dismiss the appeal as untimely, I note that petitioner raises several allegations regarding respondent’s failure to comply with all of the provisions of Education Law and the regulations of the Commissioner regarding student discipline. Respondent is reminded of its obligation to fully comply with all laws and regulations governing the discipline of students.

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