Skip to main content

Decision No. 13,839

Appeal of EVETTE G., on behalf of THEODORE R., from action of the Board of Education of the Hempstead Union Free School District regarding student suspension.

Decision No. 13,839

(October 10, 1997)

Long Island Advocacy Center, Inc., attorneys for petitioner, Sherrie Levine, Esq., of counsel

Berkman, Henock, Peterson & Peddy, P.C., attorneys for respondent, Joseph E. Macy, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals respondent's suspension of her son for a period of eight school days during the 1996-1997 school year. The appeal must be dismissed.

On October 31, 1996, petitioner's son, a student at the Hempstead Middle School, was discovered in possession of a cigarette lighter, matches, and a medicine vial containing cigar butts. By letter dated November 1, 1996, respondent's superintendent suspended Theodore R. for possession of dangerous objects and scheduled a hearing for November 7, 1996. At petitioner's request, the hearing was adjourned to November 13. By letter dated November 14, the superintendent found Theodore guilty of the offense charged. Because of the absence of any anecdotal history and because Theodore had already been suspended for eight school days, the superintendent decided that no further disciplinary action was warranted and directed that Theodore return to school on November 14.

In this appeal, petitioner argues that the conviction of her son was the result of an illegal search and claims that he received no home instruction during his eight-day suspension. Petitioner asks that I annul the finding of guilt, expunge the finding and penalty from his school record, and provide him with compensatory education.

Respondent generally denies any wrongdoing, claims that the search was proper in all respects, and argues that the finding of guilt was correct, particularly in view of the fact that Theodore admitted possession of the objects.

The appeal must be dismissed. 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 petitioner has appealed the superintendent's decision to the board of education. As a result, this appeal comes to me prior to the exhaustion of the administrative remedy specifically provided by statute, which must be pursued before an appeal to the Commissioner may be commenced (Appeal of Doty, 35 Ed Dept Rep 134; Appeal of a Child With a Disability, 33 id. 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).