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Decision No. 14,954

Application of a STUDENT WITH A DISABILITY, by her parents, from action of the Board of Education of the Comsewogue Union Free School District regarding student discipline.  

Decision No. 14,954


(September 17, 2003)


Lamb & Barnosky, LLP, attorneys for respondent, Robert H. Cohen, Esq., of counsel

By letter dated November 8, 2002, petitioners" daughter was charged with writing threatening graffiti on stairwell walls and floors in the district"s high school.  Petitioners were further advised that a superintendent"s hearing would be held on November 18, 2002 to consider whether disciplinary action would be taken against their daughter.  Due to an adjournment, the hearing took place on December 17, 2002.

By letter dated January 17, 2003, the hearing officer advised petitioners of his recommendation that the student be found guilty of the charges.  No penalty was imposed and the matter was referred to respondent"s committee on special education (CSE) for a manifestation determination because the student was suspected of having a disability.  Although the superintendent had not yet received notice of the CSE determination and had made no decision concerning the hearing officer"s recommendation, petitioners commenced this appeal on January 17, 2003.  By letter dated January 24, 2002[sic], the superintendent advised petitioners that he concurred with the hearing officer"s findings, but that he would impose no sanction because the CSE had decided that the student"s conduct was a manifestation of her disability.

Petitioners assert that there was insufficient evidence of their daughter"s guilt and that her confession was coerced. Respondent asserts that petitioners have failed to exhaust their administrative remedies, that the appeal was filed prematurely, and that the appeal is moot because no sanction was imposed.   

Education Law "3214(3)(c)(1) provides in pertinent part: "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." Accordingly, the decision of a superintendent following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of D.C., 41 Ed Dept Rep 190, Decision No. 14,661; Appeal of P.R. and C.R., 41 id. 48, Decision No. 14,611; Appeal of Cuardrado, 40 id. 470, Decision No. 14,529). There is no evidence that petitioners ever attempted such an appeal to the board. Therefore, the appeal must be dismissed for petitioners" failure to exhaust their administrative remedies.

In light of this disposition, I need not address the parties" remaining contentions.