Decision No. 12,843

(November 25, 1992)

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, Esqs., attorneys for respondents, Daniel R. Mooney, Esq. of counsel

SOBOL, Commissioner.--Petitioner appeals from a decision of the superintendent of schools of the Spencerport Central School District, rendered pursuant to a superintendent's hearing, to place petitioner on probation for the remainder of her senior year due to her attendance record. Petitioner requests that her record be expunged, and that the certification of respondents Clement and Selander be reviewed for possible revocation, suspension, or censure. The appeal is dismissed.

Petitioner was a senior attending the Ellsworth J. Wilson High School in the 1988-89 school year. Due to petitioner's irregular attendance, respondent Selander, the building principal, wrote petitioner's parents on December 19, 1988 to schedule a principal's hearing. That hearing was held on January 9, 1989. On January 11, 1989, Selander wrote to petitioner's parents, asking them to help ensure petitioner's regular attendance in the future. Selander did not recommend disciplinary action against petitioner, and Selander acknowledged that the information the parents provided at the hearing -- that petitioner had persistent conjunctivitis -- helped him to understand why petitioner had 19 incidents of irregular attendance.

On April 12, 1989, respondent Selander advised petitioner's parents that petitioner's attendance had not improved, that petitioner had 36 incidents of irregular attendance in the school year, including 24 days of absence, seven days of tardiness, and five days in which petitioner left school early. He stated that because petitioner had accumulated 15 additional days of irregular attendance since the principal's hearing, he was requesting a superintendent's hearing. On April 13, 1989, petitioner was charged with insubordination and conduct endangering the health and welfare of herself and others, based on her irregular attendance record.

The superintendent's hearing was held on May 3, 1989. At the hearing, petitioner pled guilty to both charges. The hearing officer also found petitioner guilty based on the evidence. The hearing officer recommended that petitioner be allowed to finish the remainder of her senior year on a strict probationary basis. On May 5, 1989, respondent Clement, superintendent of schools, advised petitioner that he accepted the hearing officer's recommendation and found her guilty of insubordination and conduct endangering the health and welfare of herself and others. He placed petitioner on probation for the remainder of the school year. No other penalty was imposed.

Petitioner claims that respondents acted arbitrarily by disciplining her for not attending school due to physical illness. She also claims that such discipline violated Section 504 of the Rehabilitation Act of 1973, as amended, 29 USC '794, because it subjected her to discrimination based on physical handicap. Finally, she claims that she was coerced into pleading guilty to the charges.

Petitioner is asserting a class appeal on behalf of all individuals who have been subject to administrative sanctions by respondents due to illness. A class appeal may be maintained by a petitioner where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR 275.2). In this proceeding, petitioner has not presented evidence that there are other members of this alleged class who have questions of fact and law in common. In addition, petitioner has not shown that the members of the class are so numerous that joinder is not practicable (Appeal Dimilia, 30 Ed Dept Rep 391; Appeal of Almeter, 30 id. 230; Appeal of Kessler, 29 id. 235). Therefore, this appeal may not be maintained as a class appeal.

Petitioner requests that I disallow respondents' answer, or in the alternative, extend the time for service of petitioner's reply, because respondents' answer was addressed to petitioner's parents, rather than to petitioner herself. Petitioner provides a copy of the envelope, which she states contained the answer. The envelope was postmarked August 15, 1990, and it was addressed to petitioner's parents from respondents' attorneys. Petitioner and her parents live at the same address. Petitioner states that her parents did not give the envelope to her until September 6, 1990.

Petitioner received respondents' answer and was given the opportunity to reply to each affirmative defense in the answer. As petitioner was not prejudiced by the addressing error, I will accept respondents' answer. However, because the addressing error caused a delay in petitioner's receipt of respondents' answer, I will also excuse the untimely service of petitioner's reply.

Respondents contend that the petition should be dismissed on procedural grounds. First, respondents claim that the appeal must be dismissed as untimely. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner be instituted within 30 days from the making of the decision or the performance of the act complained of. Petitioner is appealing from the decision of the superintendent of schools, dated May 8, 1989. Petitioner did not commence this appeal until July 31, 1990, more than 14 months after the superintendent's decision was rendered.

Petitioner states that she did not appeal the decision of the superintendent sooner because she did not know her appeal rights. She states that respondents should have advised her of the right to appeal to the Commissioner of Education but failed to do so. However, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal, except in unusual circumstances (Appeal of Randal J. Saeger, 31 Ed Dept Rep 528; Appeal of Pitney Bowes, Inc., 31 id. 290; Appeal of Najuch, 31 id. 9). I find no unusual circumstances to excuse the delay in this case. Superintendent Clement advised petitioner that she had the right to appeal his decision to the board of education, pursuant to Education Law '3214(3)(c), but petitioner did not initiate that appeal for reasons best known to herself. Therefore, I will dismiss the appeal against respondents as untimely. Respondents also contend that the appeal should be dismissed for failure to exhaust administrative remedies. Education Law '3214(3)(c) provides for the review of a disciplinary decision of a superintendent after a hearing:

I have repeatedly held that the decision of the superintendent rendered after a superintendent's hearing must be appealed to the board of education prior to initiation of an appeal to the Commissioner of Education (Appeal of Holliday, 29 Ed Dept Rep 373; Appeal of Felice, 29 id. 332; Appeal of Dillon, 25 id. 23; Matter of Ahern, 22 id. 123; Matter of Berkman, 21 id. 590; Matter of Decker, 12 id. 261; Matter of Anderson, et al., 10 id. 149). Petitioner did not seek the board's review of the superintendent's decision. Accordingly, this appeal must be dismissed as premature.

Because this appeal is dismissed on procedural grounds, it is unnecessary to reach the merits. Although I make no findings on the merits of petitioner's claim that she was being disciplined for not attending school due to physical illness, respondents should be mindful that it would be improper to discipline a student for poor attendance caused by legitimate illness and that such action by a school district could constitute a violation of Section 504 of the Rehabilitation Act of 1973.

THE APPEAL IS DISMISSED.

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