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Decision No. 14,172

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the William Floyd Union Free School District regarding student suspension.

Decision No. 14,172

(July 28, 1999)

Ehrlich, Frazer & Feldman, attorneys for respondent, Florence Frazer, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals her son's suspension from school from September 14, 1998 until September 23, 1998. The appeal must be dismissed.

Petitioner's son is ten years old and classified as learning disabled by the Committee on Special Education ("CSE") of the Board of Education of the William Floyd Union Free School District ("respondent").

On Thursday, September 10, 1998, petitioner's son was involved in an incident involving a knife at the afternoon bus stop after being dropped off at the end of the school day. An older child was apparently waiting at the bus stop with the knife. The following morning, the parent of another child complained to the principal of the elementary school petitioner's son attends, that her son reported that petitioner's son had threatened him with the knife. Petitioner was called to the school on Friday, September 11, 1998 to meet with the principal, who explained that her son was being suspended for five days beginning Monday, September 14, 1998. A written notice dated September 11, 1998 to petitioner confirmed the five-day suspension for a violation of the school's weapons and bus policies. The student was charged with obtaining the knife from the other student at the bus stop, opening the knife, showing the knife to and verbally threatening another student, saying, "watch your back." The September 11, 1998 notice also informed petitioner that a superintendent's hearing would be scheduled to determine when her son may return to school if an additional suspension were imposed.

On September 14, 1998, petitioner received a written notice from the assistant superintendent that he would conduct a suspension hearing pursuant to Education Law "3214(3)(c) on Friday, September 18, 1998. Appearing for respondent at the September 18, 1998 hearing were the assistant principal, principal and director of special education. Petitioner appeared without counsel. On Monday, September 21, 1998, the assistant superintendent reported to the superintendent his hearing decision that petitioner's son was guilty of the charges. For a penalty, he recommended against imposing the minimum thirty (30) school day out-of-school suspension ordinarily imposed for this type of incident. Instead, recognizing that the CSE would be meeting regarding petitioner's son, the superintendent accepted the recommendation that the student return to school on Wednesday, September 23, 1998. In a letter dated September 23, 1998, he informed petitioner of her right to appeal the decision to the board of education. Petitioner commenced this appeal on October 22, 1998.

Petitioner seeks an order expunging the suspension from her son's record. She contends that she was not properly informed by the principal at their September 11 meeting about the impending superintendent's hearing and the provision of alternative instruction. Petitioner contends that the principal's September 11, 1998 notice she received did not attach a copy of the weapons policy referred to therein and that her son did not have the knife in school or bring it to the bus stop. Petitioner contends that the assistant superintendent improperly conducted the hearing by admitting into evidence statements that were not notarized and/or read into the record. Petitioner contends that she was denied the opportunity to question witnesses who did not appear but whose statements were admitted into evidence. Petitioner further contends that the tape recording of the hearing was made only after she indicated that she would record the proceedings herself.

Respondent denies that the hearing was improperly conducted and contends that petitioner had a full opportunity to question its witnesses. Respondent contends that it appropriately relied upon petitioner's son's admission to the charges rather than requiring the alleged victim to appear and testify. Respondent contends that the hearing decision is based on the evidence, that a satisfactory record was made, and that the penalty is not excessive for the misconduct. Respondent also contends that the petition is premature because petitioner failed to appeal to the board of education despite receiving notice of her right to do so.

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 641, Decision No. 14,108; Appeal of a Student Suspected of Having a Disability, 38 id. 332, Decision No. 14,047; Appeal of Evette G., 37 id. 192, Decision No. 13,839). Accordingly, the appeal must be dismissed.