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Decision No. 17,445

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Lawrence Union Free School District regarding student discipline.

Decision No. 17,445

(July 16, 2018)

Minerva & D’Agostina, P.C., attorneys for respondent, Christopher G. Kirby, Esq., of counsel

Elia, Commissioner.--Petitioner appeals the decision of the Board of Education of the Lawrence Union Free School District (“respondent”) to impose discipline upon her son (“the student”).  The appeal must be dismissed.

On October 23, 2017, the student was suspended for five days for “cutting” a school assembly and smoking marijuana on school grounds.  The high school principal informed petitioner of the student’s suspension in a letter dated October 23, 2017.

In a letter dated October 25, 2017, respondent informed petitioner that it would convene a long-term suspension hearing on October 30, 2017 based upon the student’s conduct on October 23, 2017.  The long-term suspension hearing convened as scheduled.

In a letter dated October 30, 2017, the superintendent found the student guilty of the charged conduct and suspended the student for the remainder of the 2017-2018 school year.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 12, 2017.

Petitioner raises procedural and substantive objections to the long-term suspension.  Petitioner argues that the district “should have ... show[ed] me all the proof [it] had” against the student prior to the long-term suspension hearing.  Petitioner also alleges that the hearing officer had predetermined the student’s guilt.  With respect to the superintendent’s finding of guilt, petitioner contends that this determination was not based on competent and substantial evidence.  Specifically, petitioner contends that the student denies his guilt, that the student did not have marijuana on his person on October 23, 2017 and that no eyewitness testimony supported the superintendent’s determination of guilt.  Petitioner further asserts that she was given incorrect information regarding the potential length of the student’s suspension.  Petitioner contends that the student’s suspension was excessive, asserting that other students have received lesser suspensions for similar conduct.  Petitioner requests that the student’s long-term suspension be annulled and expunged from his record.

Respondent contends that the appeal must be dismissed as it complied with all relevant legal requirements.  Respondent further asserts that petitioner has not appealed the superintendent’s determination to respondent.

The appeal must be dismissed for failure to exhaust administrative remedies. 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 in excess of five school days following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of D.C., 41 id. 190, Decision No. 14,661; Appeal of P.R. and C.R., 41 id. 48, Decision No. 14,611). 

According to an affirmation submitted by the superintendent, petitioner did not appeal the superintendent’s decision to respondent.  The record contains no evidence of such an appeal, and petitioner did not submit a reply to otherwise address this issue.  While I have excused a parent’s failure to appeal a short-term suspension to a board of education where the board did not adequately apprise petitioner of such a local requirement in its determination letter (see Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334), this reasoning does not apply equally to long-term suspensions, where the right to appeal is set forth in statute.  Petitioner is charged with knowledge of Education Law §3214(3)(c)(1) and was provided notice in respondent’s Code of Conduct that an appeal to the board of education must be taken within 10 business days of the superintendent’s decision, unless the parents can show extraordinary circumstances which precluded them from doing so, and that only final decisions of the board may be appealed to the Commissioner.  In this case, there is no evidence that petitioner has attempted to appeal to respondent, and I have no basis on this record for concluding there was a constructive denial of an appeal by respondent (cf. Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258 [board’s inaction on parent’s appeal amounted to constructive denial under the circumstances of the appeal]).  As noted above, a parent challenging a superintendent’s decision imposing a long-term suspension must appeal to the board of education prior to commencing an appeal to the Commissioner, so that the Commissioner is reviewing a final determination of the board (see Appeal of T.W., 54 Ed Dept Rep, Decision No. 16,728 [appeal dismissed for failure to exhaust administrative remedies where petitioner appealed to board of education but filed an appeal pursuant to Education Law §310 before the board rendered its decision]).  Therefore, because petitioner did not first bring an appeal to respondent, the appeal must be dismissed for failure to exhaust administrative remedies.

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