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Decision No. 13,490

Appeal of TIMOTHY and PAMELA DOTY, on behalf of their son, TODD, from action of the Superintendent of Schools of the Gouverneur Central School District regarding student suspension.

Decision No. 13,490

(September 29, 1995)

Case & Leader, attorneys for respondent, Robert J. Leader, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal respondent's suspension of their son on April 3, 1995, for the remainder of the 1994-1995 school year. The appeal must be dismissed.

During the 1994-1995 school year, petitioners' son, Todd, was tardy, truant, incorrigible and disobedient on several occasions. The superintendent discussed Todd's behavior with petitioners at an informal conference on January 26, 1995. On March 22, 1995, after Todd was suspended by the principal, the superintendent formally notified petitioners of a disciplinary hearing to consider 40 separate incidents of misconduct allegedly committed by their son throughout the school year. That hearing was conducted on March 30, 1995 and on March 31, the superintendent determined that Todd was guilty of most, but not all, of the charges. On April 3, the superintendent informed petitioners, by letter, that he was suspending Todd for the remainder of the 1994-1995 school year. The letter additionally arranged for Todd's alternative education during the suspension and informed petitioners that they had a right to appeal the superintendent's decision to the board of education. This appeal ensued.

Petitioners allege that the hearing was not conducted in an impartial manner, that the superintendent was biased, and that the penalty imposed was excessive. They request that Todd's suspension be expunged from his permanent school records.

Respondent generally denies petitioners' claims, and raises a number of affirmative defenses, including failure to particularize petitioners' claims, failure to state a cause of action, failure to carry petitioners' burden of proof, and failure to exhaust administrative remedies by appealing to the board of education.

Education Law '3214(3)(c) provides:

The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent. The report of the hearing officer shall be advisory only, and the superintendent may accept all or any part thereof. 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 board may adopt in whole or in part the decision of the superintendent of schools.

There is no indication in the record before me that petitioners have appealed respondent's decision to the board of education. As a result, this appeal has been brought to me prior to the exhaustion of the administrative remedy provided by statute, which must be pursued before an appeal to the Commissioner may be commenced (Appeal of a Child With a Disability, 33 Ed Dept Rep 672; Matter of Ahern, 22 id. 123; Matter of Berkman, 21 id. 590; Matter of Holfelner, 14 id. 151, reopening denied 14 id. 375; Matter of Anderson, et al., 10 id. 149; Matter of Bray, et al., 10 id. 215).