Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the New York City Department of Education regarding student discipline.

Decision No. 16,575

(November 6, 2013)

Bronx Legal Services, attorneys for petitioner, Alexander

H. Artz, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Thaddeus Hackworth, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the decision of Dennis M. Walcott, Chancellor of the New York City Department of Education (“respondent”) to suspend her son (“the student”). The appeal must be dismissed.

During the afternoon of May 31, 2011, petitioner’s son, a 12-year-old student at Intermediate School 131, was discovered to be in possession of a razor blade which he allegedly brandished in a threatening manner against two other students. In a “Special Education Suspension Notice” dated June 7, 2011, respondent notified petitioner that the student would be suspended starting the next day, that a hearing was scheduled for 8:30 a.m. on June 15, 2011, and that a manifestation determination review would be held on June 17, 2011. The student was charged with possession of a dangerous weapon and threatening behavior, thereby constituting a danger to the health, safety, welfare and morals of the student and others at the school.

The hearing was held on June 15, 2011 before respondent’s Chief Executive Officer (“CEO”). Although the parties dispute the timing of events surrounding the start of the hearing and petitioner’s admission thereto, the record indicates that petitioner did not arrive at the scheduled 8:30 a.m. start time and that, when contacted by DOE staff by telephone, petitioner stated that she was en route. The CEO began the hearing in absentia at some point after 10 a.m., as petitioner had still not arrived.1 Petitioner claims that she arrived at 11:10 a.m., while

10:56 a.m. However, in her decision, the CEO stated that the hearing began at 10:30 a.m.

1 In the hearing transcript, the CEO stated that the hearing began at

respondent asserts in its verified answer that petitioner arrived at 11:27 a.m. The parties agree that petitioner was admitted to the hearing at 11:35 a.m., after several witnesses, including the principal, whose testimony had been subpoenaed by petitioner, had completed their testimony and been excused. The CEO stated in her decision that petitioner “was allowed to join the hearing with two expressed conditions: one that she would comport herself in a rational manner and that witnesses that had already testified and been excused would not be recalled.”

On June 20, 2011, the CEO issued a determination that the suspension was sustained and that the student was suspended for one calendar year, effective June 8, 2011. During that time, the student was to attend an alternative learning center in the Bronx. The determination also stated that the suspension would be expunged upon the student’s graduation or permanent departure from respondent’s schools. Petitioner appealed the CEO’s suspension decision to respondent by letter dated July 12, 2011.

In a decision dated August 2, 2011, the CEO’s determination was upheld in part by the Chancellor’s First Deputy Counsel (“Counsel”). In her decision, the Counsel upheld the CEO’s determination as to the charge that the student possessed and used a razor blade to threaten two other students. However, she overturned the CEO’s determinations relating to new charges added at the hearing that the student engaged in “search and attempted robbery” of the two other students. The Counsel found that there was inadequate notice provided to petitioner regarding the search and attempted robbery charges and that the CEO thus acted beyond the scope of her authority by adding these entirely “new” charges. The matter was remanded to the CEO for a re-determination of the penalty. On or about August 5, 2011, the CEO affirmed the one calendar year suspension. This appeal ensued.

Petitioner contends that the finding of guilt was not based on credible evidence and that the hearing was procedurally defective. Petitioner argues that she was denied the opportunity to a fair and impartial hearing because of CEO’s alleged bias and incompetence, evidentiary errors made by the CEO, and the CEO’s failure to adequately inform petitioner of her rights. She also claims that she was denied an adequate opportunity to conduct examinations of witnesses against the student. Petitioner requests that

the student’s suspension be reversed and expunged from his record.

Respondent claims that the instant appeal is untimely and must be dismissed. Respondent argues that the hearing was conducted properly, that all due process rights were afforded to petitioner, and that petitioner failed to prove bias or incompetence on the CEO’s part. Respondent asserts that issues raised in the instant appeal were not presented first in the administrative appeal before respondent and thus arguments such as bias, incompetence, and a denial of a fair opportunity to be heard are not properly before the Commissioner.2

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). Because the student’s suspension has been served, the appeal is therefore moot, except to the extent petitioner seeks expungement of the student’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).

Nevertheless, 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 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). Respondent’s administrative appeal determination was dated August 2, 2011. The affidavit of service

2 Respondent claims that, in her appeal to respondent, petitioner only asserted claims regarding the outcome of the CEO’s findings, lack of adequate investigation by respondent’s staff, and the credibility of witnesses.

submitted with the petition indicates that petitioner did not serve the instant appeal upon respondent until April 4,2012, eight months later.

In the verified petition, petitioner’s attorney argues that the appeal should not be dismissed as untimely because respondent did not notify her of the administrative procedure for bringing an appeal to the Commissioner of Education, because she was previously acting pro se, and because of the “egregious due process violations in this case.” 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). I find no unusual circumstances in this case. Petitioner’s assertion that her delay should be excused based on respondent’s alleged due process violations and because she was seeking counsel, had difficulty in “crafting” the appeal, and commenced the appeal within one week of retaining an attorney are not sufficient bases upon which to excuse petitioner’s delay (see Appeal of Perou, 49Ed Dept Rep 389, Decision No. 16,059; Appeal of E.M., 44id. 156, Decision No. 15,130; Appeal of D.C., 41 id. 277,Decision No. 14,684). Therefore, petitioner’s appeal is dismissed as untimely.

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

THE APPEAL IS DISMISSED. END OF FILE

2By letter dated April 13, 2012, my Office of Counsel returned a petition previously served and filed due to lack of the required noticeunder §275.11 of the Commissioner’s regulations. Petitioner was afforded two weeks to serve and file a corrected petition. Byletter dated April 16, 2012, petitioner submitted proof that the noticehad been properly served on respondent.