Decision No. 13,193

(June 3, 1994)

Timothy P. Frank, Esq., attorney for petitioner

SOBOL, Commissioner.--Petitioner appeals respondent's decision prohibiting his daughter from participating in graduation exercises for disciplinary reasons. The appeal must be dismissed.

In several instances on December 2, 1993, petitioner's daughter, Maryrose, directed extremely abusive language at school personnel of the Springville-Griffith Institute Central School District ("respondent"). A superintendent's hearing was held on December 17, 1993 in connection with these incidents. At that hearing, Maryrose admitted the conduct with which she was charged.

By letter dated December 29, 1993, respondent's superintendent of schools determined that petitioner's daughter admitted using abusive language towards staff. In view of his determination, the superintendent decided to allow Maryrose to complete the morning BOCES program in which she was enrolled, but to exclude her from entering the high school providing her instead with alternative instruction at the district office three days per week to allow her to graduate in June 1994. The superintendent also determined that she would not be allowed to participate in graduation exercises. This appeal ensued. Petitioner's request for interim relief pending a decision on the merits of his appeal was denied on March 11, 1994.

Petitioner does not contest the suspension imposed but alleges that respondent's decision to ban his daughter from graduation exercises is excessive and cruel, given the incidents of which she was found guilty. Respondent contends that petitioner has failed to exhaust his administrative remedies by failing to appeal the superintendent's decision to the board of education. Respondent also contends that the suspension of graduation privileges was appropriate, given the breach of conduct admitted by petitioner's daughter.

Before reaching the merits, I will address the procedural issues. There is no evidence in the record that petitioner made any attempt to appeal this determination to respondent although he was advised in the superintendent's December 29, 1993 letter that any appeal from his decision should be taken to the board of education. Education Law '3214(3)(c) provides for the review of a disciplinary decision of a superintendent after a hearing:

I have repeatedly held the decision of the superintendent rendered after a superintendent's hearing must be appealed to the board of education prior to initiation of an appeal to the Commissioner of Education (Appeal of Savastano, 32 Ed Dept Rep 326; Appeal of Holliday, 29 id. 373; Appeal of Felice, 29 id. 332; Appeal of Dillon, 25 id. 23). Because petitioner did not seek the board's review of the superintendent's decision, the appeal must be dismissed as premature.

Because the appeal is dismissed on procedural grounds, I will not address the merits. I must note, however, that while attendance at graduation ceremonies is a privilege and not a right, and a superintendent may deny this privilege as a disciplinary measure, discipline imposed must be proportionate to the offense (Appeal of Becker and Hargett, 29 Ed Dept Rep 419; Appeal of Dash, 28 id. 107; Appeal of Doris J. and Irene S., 31 id. 153). In light of the fact that this student was suspended for half the school year for using inappropriate language, the suspension alone seems a sufficient penalty. However, because this appeal is procedurally defective, I am constrained to dismiss it on that basis.

THE APPEAL IS DISMISSED.

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