Appeal of D.J. and J.J., on behalf of M.D., from action of the Board of Education of the City School District for the City of Poughkeepsie regarding student discipline.

Decision No. 17,772

(October 15, 2019)

             Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioners challenge the determination of the Board of Education of the City School District for the City of Poughkeepsie (“respondent”) to impose discipline upon their son, M.D. (“the student”).  The appeal must be dismissed.

Given the disposition of this appeal, a detailed discussion of the facts is unnecessary.  Briefly, at all times relevant to this appeal, the student attended respondent’s high school.  On October 25, 2018, the student was involved in a verbal altercation with another student.  Additionally, the student made threatening statements concerning possession of a firearm that warranted investigation by the Poughkeepsie City Police Department.

In a letter dated October 25, 2018, the high school principal suspended the student for five days.  The letter indicated that the student violated the following provisions of respondent’s code of conduct:  disturbances which disrupt instruction; mental/physical condition which endangers the health, safety, welfare and morals of students or others; intimidation, harassment, menacing or bullying behavior without physical contact; and disorderly conduct.

In a letter dated October 30, 2018, the superintendent indicated that a long-term suspension hearing concerning the student’s conduct on October 25, 2018 would be convened on November 2, 2018.  At the hearing, which was presided over by a hearing officer, the student admitted to engaging in the verbal altercation and to referencing a weapon, although he disputed other details about the incident.  In a written report and recommendation dated November 13, 2018, the hearing officer recommended that the student be found guilty of the charges against him and suspended the student through February 1, 2019.

In a decision dated November 14, 2018, the superintendent adopted the hearing officer’s recommendations with respect to guilt and penalty.  Petitioners appealed the superintendent’s decision to respondent, which upheld the superintendent’s decision in a letter dated March 7, 2019.[1]  This appeal ensued.

Petitioners challenge the student’s short-term and long-term suspensions.  With respect to the short-term suspension, petitioners contend that they did not receive documentation explaining the suspension and were not offered an opportunity to meet with the principal for an informal conference.  With respect to the long-term suspension, petitioners concede that the student admitted to engaging in the conduct for which he was charged but maintain that his admission was originally obtained under duress.  Petitioners also argue that they were prohibited from providing testimony and entering certain evidence into the record during the superintendent’s hearing.  Finally, petitioners contend that respondent failed to provide the student with educational services during his suspension.  For relief, petitioners request that administrative action be taken against respondent and certain district employees for their alleged mishandling of the October 25, 2018 incident, the student’s suspensions, the superintendent’s hearing, and the appeal process.  Notably, petitioners do not request that either the short-term or long-term suspensions be expunged from the student’s record.

Respondent maintains that the appeal must be dismissed as untimely, for lack of jurisdiction, and as moot, among other things.  Respondent further asserts that its determination to suspend the student was based on competent and substantial evidence and appropriate in all respects.

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 (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  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 C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).

Respondent denied petitioners’ appeal in a letter dated March 7, 2019.  The record does not reveal when petitioners received this determination.  Thus, affording the usual five days for mailing, petitioners were required to commence an appeal by April 12, 2019.  According to petitioners’ affidavit of service, the petition was not served until May 10, 2019, well beyond the required time period.  Petitioners do not set forth in the petition good cause for such delay in the petition (8 NYCRR §275.16).  Accordingly, the appeal must be dismissed as untimely.[2]

To the extent that petitioners challenge the student’s suspensions, the appeal must also be dismissed 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Here, petitioners do not seek expungement of the short- or long-term suspensions from the student’s record.  Thus, no further meaningful relief can be granted, and the appeal must be dismissed as moot (Appeal of S.V., 55 Ed Dept Rep, Decision No. 16,829; Appeal of a Student with a Disability, 53 id., Decision No. 16,561; Appeal of H.B., 49 id. 433, Decision No. 16,073, aff'd, Index No. 6819-10, Sup. Ct., Albany Co., [McGrath, J.], Jan. 14, 2011).

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

THE APPEAL IS DISMISSED.

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