Decision No. 13,000

(September 2, 1993)

SOBOL, Commissioner.--Petitioners appeal from respondent's affirmance of its superintendent's decision to suspend their son from school until the first day of the second semester of the 1993-94 school year. Petitioners' request for a stay of the suspension was denied on May 5, 1993. The appeal must be dismissed.

Petitioners' son, now seventeen, was sixteen and an eleventh grade student in respondent's high school during the 1992-93 school year. On January 8 and January 12, 1993, two explosive devices were detonated in lockers at the high school. On January 14, 1993, the New York State Police arrested petitioners' son and charged him with the crime of Criminal Mischief in the First Degree. That same day, petitioners' son made a written statement to the police regarding his involvement in the incidents.

Petitioners claim that on January 14, 1993, the high school's assistant principal suspended petitioners' son from school. The assistant principal, however, maintains that he did not suspend petitioners' son and alleges that petitioners' son voluntarily stayed out of school following his arrest. By letter dated January 21, 1993, the high school principal advised petitioners' son that he was suspended from school for five days beginning January 22, 1993. On January 22, 1993, the superintendent notified petitioners' son in writing that a superintendent's hearing would be conducted pursuant to Education Law '3214 on January 27, 1993. The hearing was later adjourned until February 8, 1993 at the request of petitioners' attorney.

At the superintendent's hearing, the district introduced a copy of the statement made by petitioners' son to the New York State Police on January 14, 1993 and a copy of the criminal complaint filed against him. No witnesses testified against petitioners' son. On the basis of this evidence, the superintendent found petitioners' son guilty of endangering the safety, health or welfare of others in the school and suspended him from school until the first day of the second semester of the 1993-94 school year. Petitioners appealed to respondent board of education, and by letter dated April 2, 1993 the school's attorney notified petitioners that respondent affirmed the superintendent's decision. This appeal ensued.

Petitioners contend that the initial suspension of their son was unlawful because he was suspended by the high school's assistant principal. Petitioners further contend that their son was suspended for more than five days before the superintendent notified him of his right to a hearing. Petitioners argue that their son was denied due process because he was denied the right to cross-examine witnesses against him and the superintendent was not an impartial hearing officer. Petitioners also argue that the decision to suspend their son is not supported by competent and substantial evidence. Lastly, petitioners contend that the penalty imposed is excessive.

Respondent contends that school authorities properly suspended petitioners' son in accordance with Education Law '3214 and conducted a superintendent's hearing in a timely manner. Respondent further contends that petitioners' son was not denied due process. Respondent maintains that the decision to suspend petitioners' son is supported by competent evidence and that the penalty imposed is appropriate. Respondent also argues that the appeal should be dismissed because petitioners: have raised novel questions of constitutional law; commenced a prior action in federal court for the same relief; and waived any right to challenge the evidence presented at the superintendent's hearing by failing to make a timely objection.

In its papers, respondent alleges, in conclusory fashion, that I should not decide this appeal because there is a prior pending action between the parties in the United States District Court, Northern District of New York, for the same relief. It has repeatedly been held that the Commissioner will not entertain an appeal pursuant to Education Law '310 while there is an action pending in another forum involving the same issues and seeking similar relief (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 262; Appeal of Regent, et al., 27 id. 398; Appeal of Board of Educ. of North Bellmore Union Free School Dist., 25 id. 333; Matter of Young, 22 id. 256). Respondent, however, offers no real explanation of how the District Court action involves the same issues and seeks the same relief. As a result, my Office of Counsel had to ask respondent to submit a copy of the complaint in the District Court action. Petitioners' papers, on the other hand, contain conflicting and confusing representations as to what issues have been raised in the two proceedings. Therefore, I am constrained to decide whether the issues and relief are similar by comparing the District Court complaint with the petition in this appeal.

My review of the pleadings reveals that the judicial proceeding relates to the same set of facts and raises essentially the same issues as raised in this appeal. Clearly, it is contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy (Appeal of Regent, et al., supra; Matter of Young, supra). Two of the main issues raised in this proceeding, whether the initial suspension of petitioners' son was illegal and whether petitioners' son was denied due process, have clearly been raised by petitioners in the pending District Court action. Furthermore, petitioners' claims that respondent's determination is not supported by competent and substantial evidence and that the penalty is excessive are inextricably intertwined with the issues raised in the District Court action.

It should also be noted that, although framed somewhat differently, petitioners' request for relief in the pending Court action is essentially the same as the relief sought in the instant appeal. Notwithstanding petitioners' claim for damages, over which the Commissioner has no jurisdiction in any event, petitioners are basically seeking to annul respondent's determination simultaneously in two separate forums. Petitioners may not, as they have attempted, proceed in different forums, even if under different theories, and seek identical relief (Matter of Young, supra).

In light of petitioners' election of remedies, I am constrained from deciding the merits of this appeal.

 

THE APPEAL IS DISMISSED.

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