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Decision No. 14,985

Appeal of V.E., on behalf of her children, from action of the Board of Education of the Center Moriches Union Free School District regarding student discipline.


Decision No. 14,985

 (November 19, 2003)


Ehrlich, Frazer & Feldman, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the suspension of her children by the superintendent of the Center Moriches Union Free School District ("district").  The appeal must be dismissed.

Petitioner"s four children attended school in the district during the 2002-2003 school year.  On April 4, 2003, they were involved in a disturbance on school grounds at the district"s junior/senior high school following ninth period dismissal.  Although there is some factual dispute, it appears that one sibling fought with a student and the other three siblings intervened to defend her.  School security officers and other personnel attempted to stop the altercation and the police were eventually called to the scene.  District officials accused three siblings of striking one of the security guards.  Petitioner accused the security guard of hitting her children and using racial slurs.

A number of charges were brought against petitioner"s children.  A superintendent"s hearing was held on several dates beginning April 14 and ending May 12, 2003.  By individual decisions dated May 27, 2003, the superintendent found each of petitioner"s children guilty of conduct "which is insubordinate or disorderly or violent or disruptive and/or a danger to the safety, morals, health or welfare of others."  One was permanently suspended, another was suspended until October 31, 2003, the third was suspended until June 30, 2003 and the fourth was suspended until June 30, 2004.  This appeal ensued.

Petitioner alleges that each suspension was improper because the superintendent did not consider the conduct of school personnel, who she claims physically and verbally abused her children.  She also claims that each suspension is excessive.  Finally, petitioner asserts that the home tutoring provided to her children is inadequate.  Petitioner asks that I annul the suspensions.

Respondent argues, among other things, that the appeal must be dismissed because petitioner failed to exhaust her administrative remedies by appealing the superintendent"s determination to the board of education.

Education Law "3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent"s disciplinary determination.  Accordingly, the decision of a superintendent to suspend a student 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. and C.R., 41 id. 48, Decision No. 14,611).

Each of the superintendent"s decisions advised petitioner of her right to appeal to the board of education.  Respondent states that petitioner never appealed any of the suspensions to the board and petitioner offers no evidence that she did so.  Accordingly, petitioner"s claims regarding the suspensions must be dismissed for her failure to exhaust administrative remedies.

Petitioner also contends that her children are not receiving adequate instruction.  In an appeal to the Commissioner, 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 Vazquez, 42 Ed Dept Rep ___, Decision No. 14,841).  Petitioner offers no evidence to support her allegation of inadequate tutoring.  Respondent, on the other hand, asserts that each student is receiving two hours of tutoring per day and that the children"s teachers have provided curriculum materials to ensure the alternative instruction is substantially equivalent to what they would receive in class.  Previous Commissioner"s decisions have found that two hours of alternative instruction fulfill a district"s obligation under the Education Law (Appeal of A.L., Jr., 42 Ed Dept Rep ___, Decision No. 14,883; Appeal of Camille S., 39 id. 574, Decision No. 14,316).  Although petitioner initially rejected many of the scheduling options offered by the tutor, the hearing examiner facilitated an agreement between petitioner and respondent on a schedule for instruction.  Accordingly, I find that petitioner has failed to meet her burden of proving that the alternative instruction provided by respondent is inadequate.

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