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Decision No. 17,489

Appeal of TRISH HYPOLITE CEPEDA, on behalf of her daughter JOY INTRIAGO, from action of the New York City Department of Education regarding school utilization.

Decision No. 17,489

(August 16, 2018)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Ian William Forster, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the vote and resolution of the Panel for Education Policy (“PEP”) of the New York City Department of Education (“NYC DOE” or “respondent”) to close New Explorers High School (07X547) (“New Explorers”) in respondent’s school district.  The appeal must be dismissed. 

During the 2017-2018 school year, petitioner’s child (the “student”) attended New Explorers.  During that school year, New Explorers served students in grades nine through twelve in building X790 in the Bronx.  On January 11, 2018, after holding a community meeting on January 8, 2018 to discuss the proposal, NYC DOE issued an Educational Impact Statement (“EIS”) proposing to close New Explorers based on “persistently low performance, including graduation rates below citywide and borough averages” and decreased enrollment.  According to the EIS, “New Explorers will close at the end of the 2017-2018 school year and will no longer exist as a high school option beginning in the 2018-2019 school year.” 

Subsequently, on February 12, 2018, NYC DOE held a joint public hearing regarding the proposed closure.  Approximately 108 members of the public attended and 21 people spoke.  Additionally, three members of the New Explorers School Leadership Team (“SLT”), one member of the Bronx SLT, and two members of the Citywide Council for High Schools made statements. 

On February 27, 2018, NYC DOE published a Public Comment Analysis summarizing the comments received at the joint public hearing and the oral and written comments submitted directly to NYC DOE.  Thereafter, on February 28, 2018, the PEP met and voted to approve the closing of New Explorers.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 15, 2018.

Petitioner alleges that NYC DOE caused New Explorers’ low enrollment by capping enrollment in August 2017; that NYC DOE did not provide New Explorers with the support for effective leadership outlined in its Renewal Program; that NYC DOE did not give the school community or geographic community the opportunity to engage with the superintendent at the January 8, 2018 community meeting; and that New Explorers students and families were not guaranteed seats in schools that offer Visual and Performing Arts and Dance programs.  Petitioner seeks to annul the PEP vote.

Respondent contends that the appeal must be dismissed as untimely and that its decision to close New Explorers was in all respects proper.

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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

By letter dated April 10, 2018, my Office of Counsel returned petitioner’s petition for failure to properly verify the petition in accordance with Commissioner’s regulations §§275.5 and 275.6.  The letter indicated that, if a corrected petition was served and filed within two weeks of the date of the letter, the appeal would be deemed to have been initiated on the day a copy of the returned petition was personally served upon respondent.  On April 27, 2018, my Office of Counsel received from petitioner the original petition and affidavit of service indicating that the petition was served on April 24, 2018, together with an affidavit of verification, sworn to on April 24, 2018, and notice of petition.  Respondent asserts that petitioner failed to file a corrected petition within two weeks of April 10, 2018 and, therefore, no appeal was properly commenced. 

However, I need not address that issue since, even if the appeal was deemed to have been commenced on April 2, 2018, the date on which petitioner first attempted to serve respondent, the appeal would still be untimely.  The record indicates that the PEP vote to close New Explorers occurred on February 28, 2018.  Petitioner submits no reply or other evidence to refute respondent’s assertions in this regard.  Accordingly, on this record, I find that petitioner’s time to commence an appeal runs from the February 28, 2018 PEP vote, at the latest.  The appeal was not commenced within 30 days of the PEP vote, and petitioner has provided no excuse for the delay.  Therefore, even if I were to accept petitioner’s original affidavit of service, the appeal is untimely warranting dismissal.