Appeal of T.R.-H., on behalf of her child, from action of the Board of Education of the East Islip Union Free School District regarding student discipline.

Decision No. 18,103

(April 4, 2022)

Joseph C. Stroble, Esq., attorney for petitioner

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the East Islip Union Free School District (“respondent”) to suspend her child (“the student”).  The appeal must be dismissed.

The student, who attends high school in respondent’s district, was suspended for five days for possession of marijuana on January 27, 2020.  The matter was referred to the superintendent for a hearing to determine whether additional discipline should be imposed.  At the conclusion of this hearing, the student was found guilty of possession of marijuana and suspended through April 17, 2020.  Petitioner appealed this decision to respondent, which denied her appeal by letter dated March 13, 2020.  This appeal ensued.

Petitioner requests that the Commissioner excuse the delay in bringing her appeal for good cause shown.  On the merits, petitioner argues that procedural errors and evidentiary deficiencies warrant expungement of the student’s suspension.

Respondent argues that petitioner has not established good cause for her delay in bringing the appeal.  Respondent also argues that its suspension was supported by substantial and competent evidence.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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).  Petitioner indicates that she received respondent’s decision denying her appeal on March 21, 2020.  Therefore, petitioner had until April 20, 2020 to commence this appeal.  The petition was served on respondent on August 4, 2020, which is over three months late.

On this record, I find that petitioner has failed to offer good cause for the delay.  Counsel for petitioner argues that the late filing should be excused because his office was closed from March 19, 2020 to June 11, 2020 due to the COVID-19 pandemic.  He also avers that his office did not open “until the end of June,” and “[t]hereafter, [he] was subject to a self-quarantine” through “mid to late July” 2020.  Counsel for petitioner further suggests that he needed to physically access petitioner’s “file,” which was located in his office, before he could commence this appeal.  However, the school district is responsible for maintaining a record of long-term suspension hearings (Education Law § 3214 [3] [c] [1]; see 8 NYCRR 275.12 [b]) and there is no evidence that counsel for petitioner contacted the district to obtain a copy of the record.  I note that respondent indicates that “the School District remained open and staffed” throughout spring 2020. 

Additionally, petitioner does not assert that she or her counsel were unable to access the physical or electronic resources necessary to commence a timely appeal.  The evidence in the record suggests otherwise, as counsel for petitioner obtained petitioner’s signature on June 13, 2020 and an executed affidavit of verification dated a month later.[1]  Moreover, for 13 days out of the 30-day time limitation, petitioner would not have been required to physically serve papers on respondent.  Effective April 7, 2020, a petitioner could effectuate alternative service on a school district by mail and email during the time period of any movement restrictions or school closures directed by the Governor pursuant to an Executive Order during the COVID-19 crisis (8 NYCRR 275.8 [f]).

Therefore, neither petitioner nor her counsel have established good cause for the delay (compare Appeal of G.K., 60 Ed Dept Rep, Decision No. 17,908 [seven-day delay in spring 2020 excused] with Appeal of R.A. and D.A., 61 Ed Dep Rep, Decision No. 18,047 [60-day delay in spring 2021 not excused]).  Accordingly, the appeal is dismissed as untimely.

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

THE APPEAL IS DISMISSED.

END OF FILE