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Decision No. 17,232

Appeal of P.E., on behalf of his son P.A.E., from action of the Board of Education of the Bethlehem Central School District regarding admission to Regents examinations.

Decision No. 17,232

(October 27, 2017)

Whiteman Osterman & Hanna LLP, attorneys for respondent, Beth A. Bourassa, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from a determination of the Board of Education of the Bethlehem Central School District (“respondent”) denying his son, P.A.E., admission to the June 2011 New York State Regents examination in geometry.  He seeks an order directing respondent to admit his son to that examination and to future Regents examinations.  The appeal must be dismissed.

Pursuant to §100.10 of the Commissioner’s regulations, petitioner provided home instruction to his son under an individualized home instruction plan (“IHIP”) during the 2010-2011 school year.  Petitioner’s son was eight years old and chronologically would have been in second grade had he attended respondent’s schools.  However, according to his IHIP, petitioner’s son received instruction aligned in “the core subject matter” to the district’s fourth grade curriculum.  Petitioner asserts that P.A.E. had mastered the curriculum requirements for grades one, two and three during the prior school year. 

In his November quarterly IHIP report to respondent, petitioner noted that his son was preparing for the Regents Geometry examination.  As part of petitioner’s next quarterly IHIP report, petitioner again indicated that his son was completing “the 10th grade Regents Geometry syllabus,” notified respondent of P.A.E.’s intention to take the Regents Geometry examination and requested admission to the examination in June 2011.  Thereafter, respondent provided petitioner with information about various annual assessments acceptable for use as “end of year” fourth grade assessments.  Respondent denied petitioner’s request for P.A.E.’s admission to the June 2011 Regents Geometry examination, stating that it was not an assessment of the mathematics curriculum that he should be covering and that the test is norm-referenced for students at the high school level.  This appeal ensued and petitioner’s request for interim relief was denied.

Petitioner asserts that his son prepared to take the Regents Geometry examination and contends that respondent erred in refusing to admit him.  Petitioner requests an order directing respondent to permit P.A.E. to sit for the June 2011 Regents Geometry examination, as well as an order permitting P.A.E. to sit for future Regents examinations, regardless of his age.

Respondent asserts several procedural objections, including challenges to petitioner’s reply and memorandum of law.  Respondent claims that the petition was not properly verified or served, and that the appeal is untimely.  Respondent also maintains that its decision denying P.A.E. admission to the Regents Geometry examination was not unreasonable, arbitrary or capricious or contrary to law. 

I will first address petitioner’s reply and memorandum of law.  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. 

Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4), and should not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Petitioner’s memorandum of law includes new assertions and exhibits well beyond the permissible scope.  Such additional material and exhibits are improperly submitted and, therefore, have not been considered.

With respect to respondent’s challenge to service, section 275.8(a) of the Commissioner’s regulations requires that the petition be served by someone who is over 18 and not a party to the appeal.  Respondent claims that petitioner served the petition on respondent.  However, the affidavit of service filed with the petition was completed by petitioner’s wife and attests that she served the petition on the secretary to the superintendent.  Although respondent maintains that the petition was personally served by petitioner, respondent does not provide affidavits from individuals present at the time of service or who personally observed petitioner hand-deliver the petition to a particular person.  Notably, respondent does not provide an affidavit from the individual who accepted service.  Therefore, on this record, I find that the petition was properly served by petitioner’s wife.     

Respondent’s contention that the petition was not properly verified also is without merit.  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 filed with my Office of Counsel contains the required affidavit of verification.  Accordingly, I will not dismiss the petition on that ground. 

Next, respondent contends that the appeal is 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). 

Respondent’s decision denying P.A.E. admission to the June 2011 Regents Geometry examination was conveyed by letter dated March 2, 2011.  Petitioner admits that he received the letter on March 7.  Accordingly, the appeal should have been initiated no later than April 6.  Petitioner initiated his appeal to Commissioner on April 7, beyond the 30-day requirement.  Petitioner’s only explanation for the delay is that he was not aware of the appeal process.  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).   Absent any other proferred reason for the delay in commencing the appeal, I am constrained to dismiss it as untimely.

The appeal must also be dismissed, in part, as moot. 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).  As relief, petitioner sought an interim order directing that his son be permitted to sit for the June 2011 Regents Geometry examination.  Petitioner’s request was denied and the examination was administered shortly thereafter, rendering that part of petitioner’s appeal moot.

Petitioner also seeks an order generally directing respondent to admit the student to future Regents examinations, notwithstanding the student’s age at the time of the examination.  It is well settled that the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

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