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Decision No. 14,529

Appeal of ELISA CUARDRADO and JAMES CUARDRADO from action of the Board of Education of the City School District of the City of New York regarding student discipline and transfer.

Decision No. 14,529

(January 17, 2001)

Bronx Legal Services, attorneys for petitioners, Seth Grossman, Esq., of counsel

Michael D. Hess, Corporation Counsel, attorney for respondent, Lisa A. Weiss and Blanche Greenfield, Esqs., of counsel

MILLS, Commissioner.--Petitioners, a student at the University Heights High School ("James"), and his mother, appeal the December 28, 1999 decision to transfer James from the Arts & Design High School ("Arts & Design") to another high school. The appeal must be dismissed.

James attended Arts & Design in November 1999. On November 22, 1999, he brought a razor to school. As a result of this incident, his mother was advised in a letter dated November 30, 1999 that James was suspended from Arts & Design effective November 30, 1999, and was reassigned to the West Manhattan Outreach Alternative Instruction Center. The letter included a notice issued by the superintendent charging James with possession of a dangerous weapon while at school and advised petitioners that a suspension hearing would be held on December 6, 1999. The notice also advised petitioners of their right to appeal the findings and decision of the superintendent to the Chancellor.

On December 6, 1999, James pleaded no contest to the charges. Thereafter, James withdrew his no contest plea and another hearing was held on December 20, 1999, during which James admitted to bringing the razor to school. By mailgram dated December 28, 1999, petitioners were advised of the superintendent’s decision to sustain the suspension. They were further advised that James would be suspended for 20 additional school days and that after the expiration of the suspension, he would be transferred to William H. Taft High School. Before receiving the superintendent’s written decision, petitioners commenced this appeal. A copy of the superintendent’s decision dated February 1, 2000 was attached to respondent’s answer. The written decision confirmed the contents of the mailgram and further advised petitioners of their right to appeal to the Chancellor. A request for interim relief was denied on February 9, 2000.

Petitioners contend that the transfer of a student as a result of a superintendent’s hearing violated Education Law "3214. They request that the transfer be vacated and that James be allowed to return to Arts & Design. Petitioners argue that they are justified in appealing directly to the Commissioner without exhausting administrative remedies because respondent has already taken a clear position on the legality of its method of student transfers in pending litigation [Board of Education of the City School District of the City of New York v. Mills (Supreme Court, Albany County, Index No. 5984-00)]. Petitioners also claim that they were prevented from meeting the exhaustion requirement because the superintendent failed to issue a written decision in a timely fashion. Finally, they argue that Education Law "3214 does not require an appeal to the Chancellor and that the addition of another level of appeal is contrary to law and imposes additional cost and delay upon an aggrieved student.

Respondent argues that the appeal must be dismissed because petitioners failed to exhaust administrative remedies. Respondent also maintains that the superintendent’s decision transferring James to another high school was in all respects lawful and is supported by substantial and competent evidence.

Initially, I note that James was under the age of 18 at the time the appeal was commenced. Because an unemancipated person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law "310, his appeal must be dismissed (Appeal of Farber, 33 Ed Dept Rep 424, Decision No. 13,100; Appeal of a Child with a Handicapping Condition, 32 id. 43, Decision No. 12,751). However, a parent may bring a petition on behalf of his or her child. Accordingly, I find that James’ mother has standing to bring this appeal on behalf of her son.

Respondent has alleged that petitioner has failed to exhaust her administrative remedies. It is well settled that under Education Law "3214(3)(c), review of the superintendent’s decision by the board of education is a prerequisite to bringing an appeal to the Commissioner under Education Law "310 (Appeal of Tooley, 39 Ed Dept Rep 334, Decision No. 14,253; Appeal of a Student with a Disability, 39 id. 60, Decision No. 14,172; Appeal of Snetzko, 37 id. 264, Decision No. 13,855). The record indicates that petitioner did not appeal the superintendent’s decision to the New York City Board of Education. As such, this appeal comes to me prior to the exhaustion of the administrative remedy specifically provided by statute. Accordingly, the appeal must be dismissed.

In addition, with respect to the legality of respondent’s policy requiring an appeal to the Chancellor before appealing to the board of education, I note my recent decision in Appeal of Amara S., 39 Ed Dept Rep 90, Decision No. 14,182, in which I indicated that in the absence of statutorily imposed exhaustion requirements, school districts may impose, by properly codified rules, exhaustion requirements that are reasonable and consistent with the right of complainants under "310 to have disputes ultimately reviewed by the Commissioner. There is no evidence in the record that respondent’s exhaustion requirement was improperly codified or is unreasonable or inconsistent with the rights of complainants under "310.

Finally, while I am constrained to dismiss the appeal in light of the failure to exhaust administrative remedies, I note that respondent’s regulations require that a full report of the superintendent’s findings and disposition be mailed to the student’s parents within 5 school days of the hearing. The hearing in this appeal was on December 20, 1999. The superintendent’s decision was dated February 1, 2000, well beyond respondent’s deadline. As such, I admonish respondent to adhere to the time limitations set forth within its regulations in the future.

THE APPEAL IS DISMISSED.

END OF FILE