Appeal of L.P., on behalf of her child, from action of the Board of Education of the Lansingburgh Central School District regarding student discipline.

Decision No. 18,369

(January 8, 2024)

The Legal Aid Society of Northeastern New York, attorneys for petitioner, Catina Venning, Esq., of counsel[1]

Whiteman, Osterman & Hannah, LLP, attorneys for respondent, Beth A. Bourassa, Esq. and Mackenzie E. Brennan, of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Lansingburgh Central School District (“respondent” or “district”) related to discipline imposed on her child (the “student”).  The appeal must be dismissed.

The student was the subject of several suspensions during the 2021-2022 and 2022-2023 school years as follows:

• October 1, 2021: the student was involved in a verbal altercation and received a short-term suspension of two days. 
• October 6, 2021: the student was involved in a physical altercation that resulted in a short-term (five days) and long-term (65 days) suspension.
• April 28, 2022: the student was again involved in a physical altercation that resulted in a short-term suspension of five days. 
• September 8, 2022: the student was involved in a third physical altercation that resulted in a short-term suspension of five days.

During this timeframe, petitioner filed two complaints under the Dignity for All Students Act (“Dignity Act”) in February and September 2022, respectively.  In October 2022, respondent determined that both Dignity Act complaints were unfounded.  

On October 17, 2022, petitioner served an appeal to the Commissioner on respondent (the “first appeal”).   Respondent submitted an answer to the first appeal on November 8, 2022.

On December 8, 2022, the State Education Department’s Office of Counsel (“OC”) returned respondent’s answer as petitioner had not filed the first appeal with OC, as required (8 NYCRR 275.9).

 On January 18, 2023, the student was involved in an altercation in the school cafeteria that resulted in a short-term suspension of five days.  This appeal ensued.[2]

Petitioner argues that the disciplinary incidents described above arose from bullying and harassment by other students.  She seeks expungement of the student’s suspensions from her record as well as other remedial relief.  Petitioner acknowledges that many of her claims are untimely but seeks that the “appeal timeline [ ]” be “waive[d]” due to respondent’s “pattern of unresponsiveness” and “failure ... to ... take these matters seriously” as well as petitioner’s “limited access to legal representation.”   

Respondent argues that the appeal must be dismissed, among other grounds, as untimely and for improper service.  Respondent further argues that the relief sought regarding the January 18, 2023 suspension is moot. 

The appeal must be dismissed for lack of personal service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

Petitioner’s affidavit of service states that it was served on “Christina Williams or designee Tammy....”  A handwritten notation identifies the recipient as the “designee” of Ms. Williams, the district clerk.  In its answer, respondent indicates that the individual who accepted service of the petition is a secretary who is not authorized to accept service on behalf of the district.  Petitioner did not submit a reply or assert that the secretary affirmatively represented that she could accept service of the papers on the district’s behalf (compare Appeal of T.V. and J.V., 62 Ed Dept Rep, Decision No. 18,265).  Thus, I am constrained to dismiss the petition for improper service (Appeal of K.R., 61 Ed Dept Rep, Decision No. 18,017; Appeal of Hannah-Albon, 59 Ed Dept Rep, Decision No. 17,699; Matter of Alcorn, et al., 24 id. 201, Decision No. 11,365).  

Most of petitioner’s claims must also 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).  The appeal was served on February 17, 2023, several months after all but one of the suspensions and respondent’s Dignity Act determination.  Petitioner’s conclusory allegations that respondent was “unresponsive” and failed to “take these matters seriously” do not constitute good cause (see Appeal of A.G., 56 Ed Dept Rep, Decision No. 17,084; Appeal of C.R., 49 id. 325, Decision No. 16,043).  Additionally, petitioner’s claims of “limited resources” and “limited access to legal representation” are unpersuasive where petitioner was represented by counsel as early as fall 2022 when she commenced the first appeal.  Therefore, all but one of petitioner’s claims must be dismissed as untimely.

Had the appeal been appropriately served, petitioner’s only timely claim would be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  Respondent indicates that it has expunged the January 18, 2023 suspension from the student’s record.  As such, no further relief may be granted with respect to this claim (Appeal of K.U., 62 Ed Dept Rep, Decision No. 18,156; Appeal of a Student with a Disability, 58 id., Decision No. 17,515).

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

THE APPEAL IS DISMISSED.

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