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Decision No. 14,108

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the Pine Plains Central School District regarding student discipline.

Decision No. 14,108

(April 12, 1999)

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

MILLS, Commissioner.--Petitioner appeals his son's suspension from school from December 19, 1996 until June 30, 1997. The appeal must be dismissed.

On December 9, 1996, petitioner's son was referred to the Committee on Special Education ("CSE") for respondent's district and petitioner consented to have him evaluated on December 10, 1996. On December 11, 1996, petitioner's son received a verbal warning from his seventh grade teacher for making inappropriate gestures to a female student during class. By letter dated December 13, 1996, petitioner was informed that his son would be suspended for five days and that a hearing would be held on December 17, 1996, in accordance with Education Law "3214, on charges of insubordination and sexual harassment. The hearing was held on December 16, 1996 and the hearing officer found petitioner's son guilty of both charges. Respondent's superintendent concurred with the hearing officer's findings and suspended the student for the remainder of the 1996-97 school year, until June 30, 1997. Petitioner received written notice on December 19, 1996 of the superintendent's determination and that an appeal could be made to respondent. A meeting of the district's CSE was scheduled for February 12, 1997 to review the evaluation data on petitioner's son to determine if he should be classified as a student with a disability. Petitioner commenced this appeal on January 21, 1997.

Petitioner contends that the notice he received on Friday, December 13, 1996 provided insufficient opportunity for him to prepare for the hearing on Monday, December 16, 1996; that he was denied an opportunity to question respondent's witnesses; that the hearing officer improperly allowed the school principal to control the hearing; and that his son's anecdotal record contained evidence obtained illegally and accepted at face value. Petitioner asks that I expunge all sexual harassment and insubordination charges from his son's record, as well as infractions on his anecdotal record that can be proven to be false; that his son be placed in a day treatment program rather than home tutoring during the suspension; that his son be evaluated by the district's CSE in a timely manner; that a court proceeding commenced by respondent to have his son declared a person in need of supervision (PINS) be dismissed; and that the principal apologize in writing to the student and his mother for an incident on November 7, 1996.

Respondent denies that petitioner requested adjournment of the suspension hearing and contends that petitioner had a full opportunity to question the district's witnesses. Respondent denies that the hearing was improperly conducted and asserts that the school principal served as the prosecutor for the district. Respondent asserts that petitioner failed to exhaust his administrative remedies, as required by "3214 of the Education Law, by not appealing the superintendent's decision to the board of education before commencing this appeal to the Commissioner of Education.

The appeal must be dismissed. Education Law "3214(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.

The record indicates that petitioner did not appeal the superintendent's decision to respondent. 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 a Student Suspected of Having a Disability, 38 Ed Dept Rep 332; Appeal of Evette G., 37 id. 192; Appeal of Doty, 35 id. 134; Appeal of a Child with a Disability, 33 id. 162).

While respondent is reminded of its obligation to comply with the timelines in 8 NYCRR "200.4, to the extent petitioner challenges the timeliness of action by the district's CSE to evaluate his son, petitioner must exhaust his remedies under Education Law "4404. Petitioner may request an impartial hearing pursuant to Education Law "4404(1) and 8 NYCRR "200.5(d). If either party is dissatisfied with the hearing officer's decision, it may seek review by the State Review Officer pursuant to Education Law "4404(2).

Finally, the Commissioner of Education has no jurisdiction to dismiss the petition pending in family court (Appeal of a Student with a Disability, 35 Ed Dept Rep 285).

I have considered the parties' remaining contentions and found them to be without merit.