Decision No. 13,522

(December 5, 1995)

Bouvier, O'Connor, Esqs., attorneys for respondent, Chris G. Trapp, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges respondent's suspension of her son, Anthony, from school for one day. The appeal must be dismissed.

During the fall semester of 1994, petitioner's son was involved in an incident in a study hall. He was allegedly disruptive and disrespectful to the teacher when she asked him to stop misbehaving. He was given one day detention. When he refused to serve the detention, the school principal elevated the penalty to an out of school suspension. Petitioner appealed to respondent's superintendent who, after a hearing on or about December 22, 1994, reduced the penalty to one day of detention. Petitioner appealed to respondent which upheld the superintendent's determination on January 26, 1995. Thereafter, petitioner's son was directed to serve his one day detention on March 3, 1995. When he refused, the principal notified petitioner that, in accordance with the district's progressive discipline policy, her son would be suspended for one day on March 27, 1995. Petitioner advised respondent that she was going to commence an appeal pursuant to Education Law '310. Respondent agreed to hold the imposition of the penalty in abeyance while petitioner prepared her appeal. When no appeal was forthcoming, respondent again scheduled petitioner's son's suspension for May 9, 1995. Petitioner commenced this appeal on May 8, 1995 and requested a stay. Respondent once again held the imposition of the penalty in abeyance. On May 31, 1995, I granted petitioner's request for a stay. For the reasons identified below, I now vacate that stay and dismiss the appeal.

Petitioner contends that during a meeting with the principal concerning the events that gave rise to the detention, the teacher was not present, and that she has never had an opportunity to question the teacher about the incident. Respondent denies petitioner's contentions and alleges that the petition is untimely, has not been properly served upon the respondent, is defective on its face, and fails to state a meritorious claim.

As a threshold matter, I find that petitioner's appeal must be dismissed because it was not filed in a timely manner. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR '275.16). The time to commence an appeal runs from the date of the decision under review (Appeal of Goodman, 35 Ed Dept Rep 93; Appeal of Keen, 32 id. 299). Petitioner is challenging respondent's decision upholding the imposition of detention. It is undisputed that respondent rendered that decision on January 26, 1995, more than three months prior to the commencement of this appeal. Petitioner offers no excuse for the delay. The fact that petitioner's son refused to serve the detention, which resulted in the imposition of a one day suspension, does not extend the 30 day time period. Accordingly, the appeal must be dismissed as untimely.

In view of the foregoing, I will not address the merits of this appeal.

THE STAY IS VACATED AND THE APPEAL IS DISMISSED.

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