Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Liverpool Central School District regarding student discipline.

Decision No. 17,543

(December 3, 2018)

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

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Liverpool Central School District (“respondent” or “the Board”) to suspend their son (“the student”) from school.  The appeal must be dismissed.

During the 2017-2018 school year, the student attended eighth grade at respondent’s middle school.  On or about March 13, 2018, the student was involved in a physical altercation with another student for which the student received a five-day suspension, from March 13, 2017, through March 20, 2017 (the “March Suspension”).

Later during the same school year, on or about April 6, 2018, the student was suspended for an additional five days for allegedly making a false report to respondent’s administrators in which the student alleged that another student had threatened to carry out a school shooting.  Shortly thereafter, respondent’s building principal scheduled a long-term suspension hearing, which took place on or about April 18, 2018.  The hearing officer recommended that the student be suspended through the remainder of the 2017-2018 school year (the “April Suspension”).

By letter dated March 16, 2018, petitioners appealed the March Suspension to respondent.  By letter dated March 27, 2018, the Board’s president advised petitioners that the Board had upheld the March Suspension.  By an undated letter to the Board from their former counsel, petitioners also appealed the superintendent’s determination regarding the April Suspension.  By letter dated June 12, 2018, the Board’s president advised petitioners that the Board had upheld the superintendent’s decision.  This appeal — regarding both the March Suspension and the April Suspension — ensued.

Petitioners do not specifically contest the student’s guilt of the charged misconduct related to the March Suspension and, instead, allege only that respondent violated the student’s due process rights in its imposition of the suspension.  With respect to the April Suspension, petitioners dispute the findings of respondent, allege that the alternative educational programming provided to the student during the suspension was inadequate, and claim that the punishment was excessive and was levied in violation of the student’s due process rights.  As relief, petitioners request “expungement of suspensions from student’s disciplinary records from March 2018 and April 2018.”

I must first address several procedural issues.  First, respondent’s answer was filed late.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).  The record reflects that petitioners served their petition on respondent on June 28, 2018.[1]  Respondent, therefore, was required to serve an answer within 20 days — by July 18, 2018 — but did not do so until July 27, 2018.  Respondent has not established good cause for the delay in filing its answer.  Accordingly, I have not considered respondent’s answer.

Second, with respect to the March Suspension, 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 (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

The record indicates that petitioners were informed of respondent’s determination regarding the March Suspension by letter dated March 27, 2018.[2]  Allowing for the usual five days for mailing, excluding Sundays and holidays, the latest date at which petitioners may be considered to have received the determination is April 3, 2018.  Petitioners had 30 days from April 3, 2018 — that is, until May 3, 2018 — to file their appeal regarding the March Suspension.  Petitioners did not commence their appeal relating to the March Suspension until June 28, 2018.  Since the appeal, as it relates to the March Suspension, was not properly commenced until more than 30 days after petitioners’ receipt of respondent’s determination and petitioners offer no excuse for the delay, the appeal, in regard to the March Suspension, must be dismissed as untimely.

Finally, with respect to the April Suspension, the appeal must 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).

Petitioners seek expungement of the student’s record regarding the April Suspension.  By separate letter to my Office of Counsel dated July 26, 2018, respondent’s counsel states that certain video evidence used at the superintendent’s hearing was inadvertently deleted.  As a result, respondent “has elected to expunge from the [student’s] educational record” the April Suspension.  Accordingly, petitioners’ claims regarding the student’s suspension are moot and must be dismissed.

Similarly, the appeal is also moot to the extent petitioners allege that respondent failed in its responsibility to provide alternate instruction for the student.  Here, the student has completed the suspension for which he was provided alternative instruction, thus rendering any dispute as to these services moot (Appeal of F.A., 57 Ed Dept Rep, Decision No. 17,383; Appeal of C.B. and B.R., 50 id., Decision No. 16,192).

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

THE APPEAL DISMISSED.

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