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Decision No. 13,488

Appeal of L.K. on behalf of her son, C.C., from action of the Board of Education of the Middle Country Central School District regarding student discipline.

Decision No. 13,488

(September 29, 1995)

Rains & Pogrebin, Esqs., attorneys for respondent, David M. Wirtz and Jessica S. Weinstein, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the permanent suspension of her son, C.C., from the Middle Country Central School District. The appeal must be dismissed.

On April 12, 1995, C.C. allegedly had a physical altercation with another student. On April 13, 1995, C.C. was suspended from school for five days. On April 25, 1995 the district sent petitioner a letter scheduling a superintendent's hearing to consider her son's conduct and the potential need for disciplinary action against him. The letter erroneously referenced an alleged physical altercation with school teachers and administrators. The letter further informed petitioner of her rights regarding the hearing. On April 28, 1995, the district sent petitioner a second letter correcting the charges to reflect C.C.'s alleged altercation, not with school teachers and administrators, but with another student.

On May 4, 1995, a superintendent's hearing was conducted with an assistant superintendent as hearing officer. The hearing officer found C.C. guilty of the charges and recommended his permanent suspension from school, effective May 9, 1995. The penalty was based upon the hearing officer's findings of guilt and C.C.'s anecdotal record. On May 4, 1995, the superintendent adopted the hearing officer's recommendation. On May 8, 1995, petitioner requested a hearing to challenge C.C.'s anecdotal record. On May 17, 1995, respondent informed petitioner it would grant petitioner's request for a review of C.C.'s anecdotal record, but petitioner did not pursue this option. On May 21, 1995, petitioner appealed the superintendent's determination to the board of education. Respondent informed petitioner it would hear her appeal on June 11, 1995. Petitioner commenced this appeal on May 31, 1995.

Petitioner seeks an order annulling respondent's penalty as excessive. Respondent contends that the appeal is premature for failure to exhaust administrative remedies.

It is well settled that review by the board of education of a superintendent's disciplinary decision is a prerequisite to bringing an appeal to the Commissioner of Education (Appeal of Henry, 34 Ed Dept Rep 470; Appeal of Felice, 29 id. 332; Appeal of Dillon, 25 id. 23; Matter of Ahern, 22 id. 123). The record in this case reflects that although the petitioner names the board of education as a respondent in this appeal, the appeal was commenced prior to the board's review of the superintendent's determination. The appeal is thus premature and must be dismissed for failure to exhaust administrative remedies.

I have considered petitioner's other claims and find them without merit.