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Decision No. 13,299

Appeal of SANDRA BENKELMAN, on behalf of her son, LAWRENCE, from action of the Board of Education of the Lake Shore Central School District concerning a suspension from school.

Decision No. 13,299

(December 8, 1994)

Neighborhood Legal Services, Inc., attorneys for petitioner, Ronald M. Hager, Esq., of


Hurst, Brothman and Yusick, Esqs., attorneys for respondent, Phillip Brothman, Esq., of counsell

SOBOL, Commissioner.--Petitioner appeals the decision of the superintendent of the Lake Shore Central School District suspending her son from school for more than five days without a hearing. Petitioner also appeals respondent's failure to provide alternative instruction to her son in a timely fashion. The appeal must be sustained in part.

On June 1, 1994, petitioner's son Lawrence, a sixth grade student, was involved in an incident with a music teacher and apparently struck the teacher in the chest. That same day, Lawrence was informed that he would be suspended from school for five days because of his actions. That afternoon, the superintendent discussed Lawrence's conduct and suspension with petitioner. On June 7, the superintendent advised petitioner by letter that Lawrence would be suspended for the remainder of the school year and that home instruction would be provided. Subsequently, on June 15, the superintendent wrote to petitioner advising her that a suspension hearing would be held on June 20.

Petitioner brought this appeal directly, seeking a declaration that respondent board of education violated Lawrence's rights by excluding him beyond five days without a timely hearing. Petitioner further asserted respondent's failure to provide home instruction in a reasonably prompt manner. Respondent contends that this appeal must be dismissed as premature because Education Law '3214(3)(c) requires an appeal to the board of education prior to an appeal to the Commissioner of Education. Respondent also contends that making arrangements for home tutoring eight days after Lawrence's suspension constituted a reasonably prompt provision of services.

The Commissioner of Education will not entertain a challenge to a suspension in excess of five days prior to the exhaustion of the administrative remedy of appeal to the board of education (Education Law '3214[3][c]; Matter of Holfelner, 14 Ed Dept Rep 151; Matter of Walker, 11 id. 301). Accordingly, to the extent that petitioner challenges Lawrence's suspension, including the related hearing, the appeal is dismissed without prejudice, pending an appeal to respondent.

I find it necessary, however, to admonish respondent with respect to its failure to provide alternative instruction to Lawrence until eight days after his suspension from school. Education Law '3214(3)(e) requires that where a student has been suspended and the student is of compulsory attendance age, immediate steps shall be taken for attendance upon instruction elsewhere. The term "immediate" does not mean instantaneously, but it does mean that a school district should act reasonably promptly (Matter of Turner, et al. v. Kowalski, 49 AD2d 943). Respondent's delay of eight days in providing alternative instruction was not reasonable. I direct respondent to, in the future, promptly provide alternative instruction for suspended students.


IT IS ORDERED that, in the future, respondent promptly provide alternative instruction for suspended students.