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Decision No. 13,203

Appeal of ANITA Y. BALLARD-JONES, on behalf of her son, MICHAEL, from action of the superintendent of the Deer Park Union Free School District, regarding student discipline.

Decision No. 13,203

(June 10, 1994)

Zoe Zollo, Esq., attorney for petitioner

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the suspension of her son, Michael. The appeal must be dismissed.

On November 8, 1993, petitioner's son, a student at Deer Park High School, was involved in an incident which resulted in his suspension for 5 days. After a disciplinary hearing on November 17, 1993, the superintendent of schools determined that further disciplinary action was warranted and placed Michael on home instruction for 23 school days, November 18 through December 22, 1993. Petitioner was so notified by letter dated November 18, 1993. The letter also advised petitioner of her right to appeal the decision to the board of education. On December 16, 1993, petitioner instead filed this appeal.

Respondent contends that the appeal should be dismissed for failure to exhaust administrative remedies and because of numerous other procedural defects. Education Law '3214(3)(c) provides for the review of a superintendent's disciplinary determination after a hearing:

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 Commissioner has repeatedly held that the decision of the superintendent rendered after a superintendent's hearing must be appealed to the board of education prior to the 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 Elkins, 27 id. 99; Appeal of Ahern, 22 id. 123; Appeal of Berkman, 21 id. 590). In this case, petitioner failed to seek review by the board of education prior to commencing a '310 appeal. Moreover, despite petitioner's claim that it would have been futile to seek review from the board, petitioner offers no proof to support that assertion. Accordingly, this appeal must be dismissed as premature.

Although the prematurity of the appeal is sufficient cause for dismissal, there are several other procedural defects in the original petition which would similarly require dismissal. Specifically, the original petition did not contain the notice required by 8 NYCRR 275.11. In addition, the petition was not verified by the petitioner as required by ''275.5 and 275.6. Finally, petitioner's attempt to serve respondent by mailing the petition to the board of education was defective. To properly effectuate service, the petition should have been served personally upon an appropriate school district representative as delineated in '275.8.

Because this appeal is dismissed on procedural grounds, it is unnecessary to reach the merits. Should petitioner bring a subsequent appeal after a final decision has been made by the board of education, petitioner is advised to comply with the prescribed procedural requirements.