Decision No. 17,957
Appeal of H.P., on behalf his son J.P., from action of the Board of Education of the Middle Country Central School District regarding student discipline.
Decision No. 17,957
(January 6, 2021)
Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel
ROSA., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Middle Country Central School District (“respondent”) to suspend his son (“the student”). The appeal must be dismissed.
At all times relevant to this appeal, the student attended respondent’s high school. On November 20, 2019, the high school principal received information from the police suggesting that the student had made a threat of violence. In a notice of proposed suspension dated November 21, 2019, the district charged the student with “engag[ing] in conversations with other students in regard  to firearms and a list of potential targets.” The record reflects that petitioner, the student and the principal thereafter participated in an informal conference.
In a written notice dated November 21, 2019, the principal suspended the student for a period of five days. In this letter, the principal wrote:
If you are not satisfied with this decision, you may file a written appeal to the Superintendent of Schools within thirty (30) days, unless you can show extraordinary circumstances .... If you are not satisfied with the Superintendent’s decision you may file a written appeal to the Board of Education ... within thirty (30) days of the date of the Superintendent’s decision .... The final decision of the Board of Education may be appealed to the Commissioner of Education ....
By letter dated November 22, 2019, respondent's superintendent indicated the district’s intention to convene a long-term suspension hearing concerning the conduct described in the short-term suspension notice. This notice indicated that the resulting decision of the superintendent could be appealed to the board of education within thirty days of its issuance.
The long-term suspension hearing, presided over by a hearing officer, convened on November 26, 2019. In a written report, the hearing officer recommended that the student be found guilty of all charges but that no additional penalty be imposed.
By letter dated November 27, 2019, the superintendent issued a written decision adopting the hearing officer’s recommendations with respect to guilt and penalty. The superintendent’s decision included the following language:
PLEASE BE ADVISED that pursuant to Board of Education Policy 5300, an appeal of a decision of the Superintendent to the Board of Education must be in writing and submitted to the District Clerk within thirty (30) days of this decision.
PLEASE BE ADVISED that pursuant to Education Law 310, a final decision of the Board may be appealed to the Commissioner with thirty (30) days ....
This appeal ensued.
Petitioner generally claims that the charges against the student were “unfounded” and seeks expungement of the suspension from the student’s record.
Respondent contends that the appeal must be dismissed for failure to exhaust administrative remedies and as untimely. On the merits, respondent argues that the evidence adduced at the hearing contains competent and substantial evidence to support the findings of guilt against the student.
The appeal must be dismissed for failure to exhaust administrative remedies. Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of J.H. and R.H., 57 Ed Dept Rep, Decision No. 17,317; Appeal of D.O., 53 id., Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of J.R-B., 46 id. 509, Decision No. 15,578).
Generally, a board of education has discretion to adopt rules governing appeals of district decisions and may impose timelines in connection therewith (see Education Law §§1709; 2590-d). The conditions for appealing an adverse district decision must be reasonable and clearly communicated to parents (see e.g. Appeal of Halpern and Halpern, 58 Ed Dept Rep, Decision No. 17,480; Appeal of D.O., 53 id., Decision No. 16,543 [suspension notice containing “oblique” reference to code of conduct which prescribed a district timeline for an appeal held insufficient to provide notice of a restrictive policy of administrative exhaustion]).
Here, the record reflects that the district has adopted a policy for appealing a suspension of five days or less. Respondent’s policy 5300 requires that a petitioner appeal a short-term suspension to the superintendent and the board before commencing an appeal to the Commissioner pursuant to Education Law §310. As indicated above, petitioner was given explicit notice of this policy and its requirements in the principal’s determination.
I find that respondent clearly communicated the 30-day appeal timeline to petitioner and, further, that such time period is reasonable. The record contains no indication that petitioner appealed the superintendent’s determination to the board prior to commencing the instant appeal. Petitioner did not submit a reply to contest respondent’s assertions. Therefore, I find that petitioner has failed to exhaust his administrative remedies with respect to the student’s short-term suspension. Accordingly, the appeal must be dismissed (see Appeal of C.C.-B., 58 Ed Dept Rep, Decision No. 17,592; Appeal of Halpern and Halpern, 58 id., Decision No. 17,480).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 As indicated above, the long-term suspension hearing did not result in the imposition of an additional period of suspension. Given my conclusion herein, I need not determine whether petitioner’s 30 days to appeal the short-term suspension to respondent under policy 5300 was tolled during the pendency of the long-term suspension hearing.
 It appears that respondent considered the superintendent’s decision regarding the long-term suspension hearing to sufficiently satisfy the requirement that petitioner appeal the short-term suspension to the superintendent before appealing to respondent.