Decision No. 14,383

(June 12, 2000)

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the New Paltz Central School District ("respondent") to expunge from her son’s record references to an academic suspension. The appeal must be dismissed.

On May 17, 1999, petitioner's son, A. A., a student at New Paltz High School, was apparently involved in a fight at the school. He received a five-day suspension effective May 19 through May 24, 1999. Petitioner apparently took issue with the way respondent's administrators handled certain circumstances surrounding the fight and believed that they should accept at least partial responsibility for the fight. Based on that belief, she requested that A. A.’s record be expunged. By letter dated June 23, 1999, respondent’s superintendent refused her request. She then appealed to respondent who also refused her request in a letter dated October 13, 1999. This appeal was commenced on January 13, 2000.

Petitioner does not deny that her son was involved in the fight, instead she asserts that the suspension was unfairly imposed because respondent’s administrators mishandled the situation. She contends that her petition was filed late because she was unaware of the appeal process.

Respondent argues that the appeal is untimely and fails to state a claim. Respondent contends that its decision not to expunge A. A.’s record was not arbitrary, capricious or an abuse of discretion because A. A. was guilty of the underlying acts that were the basis for his suspension.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be instituted within 30 days of the decision that is the subject of the appeal, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner states that the appeal is untimely because she was unaware of the appeal process. Except in unusual circumstances, ignorance of the appeal process does not constitute "good cause" for delay (Appeal of Amara S., 39 Ed Dept Rep 90, Decision No. 14,182; Appeal of Holzer, et al., 37 id. 549, Decision No. 13,924). She also claims that respondent’s president misled her when she asked him about an appeal to a higher level. Respondent submits an affidavit from its president who denies this allegation. In any event, petitioner admits that she became aware of the appeal process on November 22, 1999, but offers no explanation as to why nearly two months passed before she commenced this appeal. Therefore, the appeal must be dismissed.

Even if it were not untimely, I would dismiss the appeal on the merits. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of World Network International Services, Inc., (WNIS), 39 Ed Dept Rep 30, Decision No. 14,164). A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of B. B., 38 Ed Dept Rep 666, Decision No. 14,113; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899). Furthermore, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of B. B., supra; Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of B. B., supra; Appeal of Alexander, supra).

Petitioner admits that her son was involved in the fight but appears to believe that alleged misconduct on the part of respondent’s administrators provides a basis to expunge A. A.’s record. However, petitioner did not submit a single item of evidence in support of her allegations or even a clear account of the alleged wrongdoing. Therefore, petitioner has not met her burden to establish a basis for relief.

THE APPEAL IS DISMISSED.

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