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Decision No. 14,261

Appeal of GREGG TAYLOR, on behalf of MATTHEW BRITCHER, from action of the Board of Education of the City School District of the City of Schenectady regarding a student suspension.

Decision No. 14,261

(December 15, 1999)

DeCataldo & DeCataldo, attorneys for petitioner, Robert T. DeCataldo, Esq., of counsel

Shari Greenleaf, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Schenectady ("respondent") affirming the suspension of his stepson Matthew Bricker. The appeal must be dismissed.

On October 14, 1997, Matthew’s mother was sent a notice of student disciplinary hearing along with the two disciplinary charges. The charges alleged that on Thursday, October 9, 1997, at approximately 11:10 a.m. on the premises of Schenectady High School, Matthew was "insubordinate, disorderly and a danger to the safety and welfare of others in the school" in that he threatened an In-School Suspension Monitor and failed to follow the directives of the Monitor, including the directives to quiet down, to leave the classroom and to report to the office. A hearing was held on October 23, 1997, at which Dr. Geraldine Wolfe, Assistant Superintendent, presided. Matthew admitted to the charges and was suspended from school from October 23, 1997 through April 3, 1998. Petitioner appealed to respondent, who upheld the determination. This appeal ensued.

Petitioner asserts that Matthew was denied a fair hearing and due process because there was no deliberative process following the hearing. He also contends that respondent denied him the right to submit arguments in support of his appeal. Petitioner seeks to have the decision vacated and Matthew reinstated. Respondent denies petitioner’s allegations, asserts that Matthew received a fair hearing and seeks dismissal of the appeal.

In an appeal to the Commissioner, petitioner bears the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Alexander, 39 Ed Dept Rep ___, Decision No. 14,232; Appeal of Trombley, 39 id. ___, Decision No. 14,189) and demonstrating a clear legal right to the relief requested (Appeal of Logan, 38 id. 694, Decision No. 14,120). While petitioner contends in a general manner that the hearing was unfair and denied Matthew due process, he fails to allege any specific instances in which the hearing was conducted in an unfair manner or violated due process (Appeal of B.B., 38 Ed Dept Rep 666, Decision No. 14,113; Matter of Dwaileebe, 17 id. 304, Decision No. 9,614). In fact, the transcript indicates that Mathew admitted to both charges at the start of the hearing. With regard to petitioner’s allegation that there was no deliberation, the record shows that the superintendent rendered his decision after reviewing a tape of the hearing, Matthew’s anecdotal record and the hearing officer’s recommendation. Thus, I find that petitioner has failed to meet his burden.

Petitioner also contends that respondent denied him the right to submit arguments in support of his appeal. Education Law "3214(3)(c) provides in pertinent part:

An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it. The board may adopt in whole or in part the decision of the superintendent of schools. [Emphasis added.]

Richard Yager, Clerk of the Board of the Schenectady City School District, avers that it is respondent’s practice when considering student discipline appeals not to accept additional arguments on behalf of the parent, student or district when it considers an appeal during executive session. In his notice of appeal to respondent, petitioner merely stated that he wished to formally file an appeal. He never submitted or requested to submit additional arguments or information. As stated above, petitioner bears the burden of establishing all the facts upon which he seeks relief and demonstrating a clear legal right to the relief requested. Not only does respondent’s policy comport with Education Law "3214(3)(c), but petitioner has also failed establish that respondent rejected or denied him any opportunity to present additional arguments. Accordingly, petitioner has also failed to meet his burden on this issue.

THE APPEAL IS DISMISSED.

END OF FILE