Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of Superintendent James Nolan of the Sachem Central School District regarding denial of the use of a GPS device.

Decision No. 17,348

(March 13, 2018)

Ingerman Smith, L.L.P., attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from a determination by Superintendent James Nolan of the Sachem Central School District (“Nolan” or “respondent”) denying her request to allow the student to use a personal GPS tracking device under certain conditions.  The appeal must be dismissed.

The relevant events in this appeal took place during the 2015-2016 school year.  The record contains a document entitled “ISP”[1] for the student dated May 22, 2015, which reflects that he has a history of elopement and “requires constant supervision and staff must be within 10 feet of him at all times.”  The student’s ISP does not identify a GPS tracking device as a required service. 

During the 2015-2016 school year, petitioner obtained a personal GPS tracking device for her son.  The record reflects that the tracking device alerts petitioner if the student wanders away from designated safe areas and allows petitioner to view the student’s location.  The tracking device also has a “listen in” feature, which allows petitioner to listen to a real-time audio transmission as captured by the GPS device.  This feature can be used for 60 minutes per month and has no recording capabilities. 

On March 14, 2016, petitioner met with the school principal and director of student services and requested that the student be allowed to use the GPS device in school.  Petitioner wrote a letter on the same date to district personnel memorializing the discussion and again requesting that the student be allowed to wear the GPS device at school.  Petitioner’s March 14, 2016 letter stated that school staff had expressed concern with the use of the “listen in” function during school hours due to privacy concerns.  By letter to petitioner dated April 14, 2016, respondent Nolan stated that the school would allow use of the GPS tracking device in school if petitioner agreed to disable the “listen in” function.  Respondent Nolan stated that school staff had communicated with the manufacturer of the GPS device and had obtained forms for petitioner to sign indicating her agreement that the GPS device could be used in school so long as the “listen in” function was disabled.  The forms were attached to the district’s letter.  Petitioner did not execute the forms.  This appeal ensued.  On June 9, 2016, petitioner’s request for interim relief permitting the student to wear the GPS tracking device pending a decision in this appeal was denied.

Petitioner argues that respondent’s determination that the student cannot use the GPS tracking device in school unless petitioner agrees to allow the manufacturer to disable the “listen in” function was arbitrary and capricious. 

Respondent argues that the appeal must be dismissed as untimely and for failure to properly join the Board of Education as a necessary party.  Respondent also argues that the petition should be dismissed because the superintendent was not personally served with a copy of the petition.  On the merits, respondent contends that the decision was neither arbitrary nor capricious, as it balanced the student’s safety with the privacy rights of other students.  Respondent further asserts that the student has never eloped from school grounds during school hours, and that the GPS device’s “listen in” feature is unnecessary because the student has “an individual aide” who is “assigned to him at all times ... at school and at school sponsored events, including field trips.”

Petitioner filed a reply to respondent’s answer.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

The appeal must be dismissed for lack of personal jurisdiction over respondent Nolan.  Section 275.8(a) of the Commissioner's regulations requires that the petition be personally served upon each named respondent.  In this case, Nolan is the only named respondent and the petition was not personally served on him, but was served instead on the district clerk.  Accordingly, the appeal must be dismissed for failure to personally serve respondent Nolan with the petition (Appeal of Loschiavo, 45 Ed Dept Rep 525, Decision No. 15,404; see also Appeal of Goldin, et al., 40 id. 639, Decision No. 14,573). 

The petition must also 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

Petitioner’s request that the student be allowed to use the GPS device with “listen in” function during the school day was denied by respondent Nolan on April 14, 2016.  The petition was served on the district clerk on June 3, 2016, more than 30 days from the decision being appealed.  Petitioner has not set forth good cause, or any cause, for this delay in her petition.  To the extent that petitioner claims in her reply that she was ignorant of the appeal process, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  No such circumstances are present here.  Additionally, although the record contains a letter from petitioner to respondent Nolan dated May 23, 2016 in which she “respectfully request[s] that [he] reconsider this decision,” a request for reconsideration does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).[2]  Therefore, the petition must be dismissed as untimely.  

Although the appeal must be dismissed on procedural grounds, to the extent the issues raised in this appeal remain ongoing, I note that in the answer, respondent references recommendations of the Committee on Special Education (“CSE”) regarding assignment of a full-time aide to the student.  Thus, it appears from the record that the student is receiving special education and/or related services pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law and that petitioner’s position that use of the GPS device would be necessary for the student’s safety and well-being could be addressed through the provisions of those statutes.  In this regard, I note that claims brought to enforce rights under the IDEA and Article 89 of the Education Law must be addressed through the due process provisions of the IDEA and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).

Given the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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