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Decision No. 14,482

Appeal of TINA S., on behalf of JOSEPH S., from action of the Board of Education of the Riverhead Central School District regarding student discipline.

Decision No. 14,482

(November 9, 2000)

Smith, Finkelstein, Lundberg, Isler, & Yakaboski, LLP, attorneys for respondent, Frank Isler, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, Joseph, from the Riverhead Middle School in respondent’s school district. The appeal must be dismissed.

On January 12, 2000, Joseph and another student were stopped and questioned by Middle School Assistant Principal Comanda because they were in the school hallway during class time without a pass. Mr. Comanda warned Joseph about this and sent him to class. As he walked away from Mr. Comanda, Joseph stated to his companion that if Mr. Comanda stopped him again he was going to punch him. A teacher overheard Joseph make this statement and escorted Joseph to Mr. Comanda’s office. Joseph was subsequently suspended for five days, pending a superintendent’s hearing. A hearing was conducted by respondent’s superintendent on January 18, 2000 which resulted in Joseph’s suspension for an additional four weeks. This appeal ensued.

Petitioner contends that the suspension imposed was excessive, that Joseph was denied due process, that respondent failed to comply with procedures specified in Education Law "3214, and that the initial suspension was improperly imposed by Assistant Principal Comanda. Petitioner alleges that she did not have the opportunity to confront witnesses at a meeting she had with respondent’s principal prior to the superintendent’s hearing. Petitioner argues that an impartial hearing officer should have heard the appeal instead of the superintendent and that Joseph’s disciplinary record was improperly reviewed prior to the penalty phase of the hearing. Petitioner also alleges that the alternative education provided by respondent was inadequate. Petitioner requests a hearing regarding respondent’s suspension practices and an order directing respondent to comply with the Education Law.

Respondent contends that the penalty imposed was not excessive and that petitioner failed to exhaust administrative remedies by appealing to the board of education before filing this appeal. Respondent also contends that the principal imposed the initial five-day suspension and that petitioner did not ask to have witnesses present at the meeting with the principal. Respondent further argues that the appeal is moot because the suspension has ended and asserts that their alternative education program is adequate.

Petitioner’s complaints regarding the initial five-day suspension must be dismissed. Education Law "3214(3)(b) allows school boards to delegate the authority to suspend students for up to five days to the school principal. Respondent submits a sworn affidavit from its principal that states that he imposed the initial suspension and that petitioner did not request the presence of witnesses at an informal conference following that suspension. Furthermore, respondent submits a copy of the letter imposing the initial suspension that is signed by the school principal. Petitioner does not submit a single affidavit or item of evidence in support of her allegations. Therefore, her claims regarding the initial five-day suspension must be dismissed.

Petitioner’s claims regarding the four-week suspension must also be dismissed because she failed to exhaust her 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 failed to appeal the superintendent’s decision to respondent. Accordingly, this claim must also be dismissed.

Finally, petitioner’s claim that respondent’s alternative education program is inadequate must also be dismissed. Petitioner does not offer any evidence to support her allegation that respondent’s alternative education program is inadequate. In an appeal to the Commissioner of Education, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Camille S., 39 Ed Dept Rep 574, Decision No. 14,316). Petitioner has not met that burden.