Decision No. 14,333

(April 12, 2000)

MILLS, Commissioner.--Petitioner appeals his suspension from Windsor Central High School and requests that he be allowed to resume attendance. The appeal must be dismissed.

On September 21, 1999, petitioner, an 18-year old high school senior, was asked to leave his math class by the teacher, Daniel Hodack, for disobeying Mr. Hodack’s instruction to stop talking in class. Mr. Hodack told petitioner to report to the vice-principal’s office. After leaving the classroom, petitioner stepped into the mathematics office, located next to the classroom, and proceeded to use the office telephone. Almost immediately thereafter, Mr. Hodack entered the office and, while accounts differ, it appears that in an effort to stop petitioner from using the phone and report to the vice-principal, a verbal dispute and physical contact between the two occurred. At some point during this altercation, the telephone was also damaged. Petitioner filed a lawsuit on September 23, 1999 in New York State Supreme Court, Broome County, against respondent, respondent’s superintendent and Mr. Hodack. The lawsuit charged Mr. Hodack with assault and battery and charged the other two defendants with negligence.

On September 22, 1999, petitioner was suspended from school and a superintendent’s hearing was held on September 24, 29 and 30, 1999. At the conclusion of the disciplinary hearing, the hearing officer found that petitioner had committed six of seven separate charges of insubordination, using profanity, threatening a teacher and damaging school property. By letter dated October 14, 1999 the superintendent notified petitioner that he accepted the hearing officer’s recommendations and had suspended petitioner for the remainder of the 1999-2000 school year. This appeal ensued. Petitioner’s request for interim relief was denied on October 29, 1999. Petitioner’s State Supreme Court lawsuit was dismissed on January 4, 2000.

Petitioner maintains that respondent violated his constitutional due process rights by commencing a disciplinary proceeding in retaliation for petitioner’s lawsuit and by refusing to open the hearing to the public. Petitioner alleges that Mr. Hodack has a history of using physical force against students, that another teacher lied during her testimony at the hearing and that the hearing officer was biased. Petitioner argues that the penalty imposed was excessive and requests that the suspension be reversed.

Respondent contends that the appeal should be dismissed as premature and for failure to exhaust administrative remedies since petitioner did not appeal the superintendent's decision to respondent board. Respondent further contends that by filing his State Supreme Court lawsuit, petitioner elected his remedies and is prevented from seeking the same relief from the Commissioner of Education.

The appeal must be dismissed because petitioner failed to exhaust his administrative remedies. The decision of a superintendent to suspend a student in excess of five days must be appealed to the board of education prior to the initiation of an appeal to the Commissioner of Education (Education Law "3214[3][c]; Appeal of a Student with a Disability, 39 Ed Dept Rep 60, Decision No. 14,172; Appeal of Shabazz, 38 id. 481, Decision No. 14,076). The record indicates that petitioner did not appeal the superintendent’s decision to respondent. Accordingly, I must dismiss the appeal for petitioner's failure to exhaust his administrative remedy.

Based on the foregoing disposition, I need not address the other issues raised by the parties.

THE APPEAL IS DISMISSED.

END OF FILE

---