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Decision No. 14,301

Appeal of DORIS T., on behalf of ANTHONY D., from action of the Board of Education of the Riverhead Central School District regarding student suspension.

Decision No. 14,301

(February 11, 2000)

Smith, Finkelstein, Lundberg, Isler and Yakaboski, L.L.P., attorneys for respondent, Frank A. Isler, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals her son's suspension from school from October 19, 1999 until December 23, 1999. The appeal must be dismissed.

Petitioner's son is thirteen years old and attends the eighth grade in the middle school operated by the Board of Education of the Riverhead Central School District ("respondent").

Petitioner's son was suspended from school by the principal from October 7 until October 14, 1999 for threatening his reading teacher during class on October 6. Petitioner's son allegedly told his teacher, "I hate you, you get on my nerves you little midget." By two letters dated October 6, 1999, petitioner was informed that her son would be suspended for five days and that a hearing would be held on October 12, 1999 in accordance with Education Law "3214, on the charge of verbally and physically threatening a teacher.

The hearing was conducted by the superintendent on October 12, 1999 without petitioner or her son present. Based upon testimony by the classroom teacher and assistant principal, the superintendent found petitioner's son guilty and directed that he be suspended from school. Upon notification of the result of the superintendent's hearing, petitioner requested another hearing to give her the opportunity to attend and be heard.

A second hearing was held on October 19, 1999 with petitioner and her son present. After this second hearing was concluded, the superintendent informed petitioner by letter dated October 19, 1999 that he found her son guilty of both verbally and physically threatening his teacher and suspended him through December 23, 1999. Petitioner commenced this appeal on October 22, 1999. By letter dated November 12, 1999, I denied petitioner's request for a stay.

Petitioner contends that her son did not threaten his teacher. She challenges the suspension and the adequacy of the alternative educational services provided by respondent.

Respondent contends that the superintendent's determination to suspend petitioner's son was rational, appropriate and supported by substantial evidence. Respondent also contends that the appeal should be dismissed because petitioner did not appeal the superintendent's suspension 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:

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.