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Decision No. 14,076

Appeal of ISMAIL SHABAZZ, on behalf of his daughter, from action of the Board of Education of the City School District of the City of Kingston relating to student discipline.

Decision No. 14,076

(February 11, 1999)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner brings this appeal against the Board of Education of the Kingston City School District ("respondent") challenging a determination by respondent's superintendent of schools suspending petitioner's daughter pursuant to Education Law "3214. The appeal must be dismissed.

Petitioner's daughter attended Kingston High School during the 1997-98 school year. On April 28, 1998, petitioner's daughter was involved in a physical confrontation with another student at the high school. By letter dated April 28, respondent's interim principal notified petitioner that his daughter was suspended pursuant to the Kingston High School Code of Conduct, Level III, No. 9, for five days as a result of engaging in a physical confrontation. On April 29, the principal sent another letter reiterating that petitioner's daughter was suspended for five days and indicating that petitioner's daughter was now charged with assault causing physical injury – a violation of the Code of Conduct, Level IV, Nos. 7 and 8 – because it was determined that the other student involved in the confrontation was injured. Respondent's superintendent of schools also notified petitioner by letter dated April 29 that a disciplinary hearing would be held on May 5 to determine whether a longer period of suspension was warranted. The letter informed petitioner of his daughter's right to be represented by counsel at the hearing, to cross-examine any witnesses that testified for the district and to present witnesses on her own behalf.

Petitioner and his daughter attended the hearing, along with respondent's assistant principal who presented for the school district. At the hearing petitioner's daughter admitted that she "had a fight" but asserted her actions were in self-defense. Petitioner's father requested that E.M., another student, be called as a witness. The hearing officer denied that request. No other testimony was presented at the hearing.

By decision dated May 6, 1998, the hearing officer found petitioner's daughter guilty of fighting with another student causing injury. After reviewing the student's anecdotal records, the hearing officer recommended suspension of petitioner's daughter for the remainder of the school year – approximately six weeks. Respondent's superintendent of schools accepted the hearing officer's recommendation and suspended petitioner's daughter. This appeal ensued.

Petitioner contends that the hearing officer's denial of his request for the production of a student witness violated his daughter's due process rights. Petitioner alleges that the record contains no evidence that the other student sustained an injury and contends, therefore, that his daughter did not violate Level IV, Nos. 7 and 8 of the Code of Conduct. Petitioner also claims respondent violated his daughter's right under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution.

Respondent asserts several procedural defenses. Respondent alleges that the petition is not verified, that petitioner failed to exhaust his administrative remedy as required by Education Law "3214, and that the petition contains impermissible constitutional claims. On the merits, respondent contends the discipline imposed upon petitioner's daughter was in all respects proper.

Section 275.5 of the Regulations of the Commissioner of Education requires that all pleadings in an appeal before the Commissioner be verified. Section 275.6 sets forth the verification to be attached to the petition. The petition herein is not verified. Although petitioner's signature is notarized, merely notarizing a signature does not constitute verification of a pleading. When a petition is not properly verified, the appeal must be dismissed (Appeal of Biggins, 35 Ed Dept Rep 357; Appeal of Frasier, 34 id. 315; Appeal of Ballard-Jones, 33 id. 701).

Respondent also contends that the appeal must be dismissed for failure to exhaust administrative remedies. Education Law "3214(3)(c) provides, in pertinent part, that:

No pupil may be suspended for a period in excess of five school days unless such pupil … shall have had an opportunity for a fair hearing … Where a pupil has been suspended in accordance with this section by a superintendent of schools … the superintendent shall personally hear and determine the proceeding or may, in his discretion, designate a hearing officer to conduct the hearing … 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… (emphasis added).

Thus, the decision of a superintendent to suspend a student in excess of 5 days must be appealed to the board of education prior to the initiation of an appeal to the Commissioner of Education (Appeal of Snetzko, 37 Ed Dept Rep 264; Appeal of Doty, 35 id. 134; Appeal of Kahn, 35 id. 129; Appeal of Ballard-Jones, 33 id. 701). In this case, there is no indication that respondent reviewed the decision of its superintendent of schools. The petition does not set forth any allegation that such an appeal was taken, nor does petitioner submit any determination by respondent from which petitioner seeks review. I note that Exhibit D of petitioner's reply is a letter requesting a meeting with respondent to discuss the superintendent's disciplinary decision. However, there is no indication that such review, in fact, took place. As noted, petitioner does not attach any decision by respondent for my review. Absent any indication that petitioner obtained review of the superintendent's decision by respondent board of education, as required by Education Law "3214(3)(c), I must dismiss the appeal for petitioner's failure to exhaust his administrative remedy.

Finally, petitioner's constitutional claims are procedurally defective and must be dismissed. Petitioner alleges in a conclusory fashion that respondent violated his daughter's constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution. In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Wells, 35 Ed Dept Rep 367; Appeal of Nash, 35 id. 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Wells, supra; Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327). Aside from his single conclusory statement, petitioner fails to set forth any basis for his constitutional claims. Therefore, I am unable to determine the nature of petitioner's constitutional claims or the basis upon which petitioner claims entitlement to any relief.

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 (See, Appeal of Ballard-Jones, supra).