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Decision No. 17,969

Appeal of T.B. from action of the Board of Education of the Lewiston-Porter Central School District regarding student discipline.

Decision No. 17,969

(March 17, 2020)

Housh Law Offices, PLLC, attorneys for petitioner, Frank Housh, Esq., of counsel

Webster Szanyi LLP, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Lewiston-Porter Central School (“respondent”) to impose discipline upon him.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  During the 2019-2020 school year, petitioner attended respondent’s high school.  In a letter dated December 11, 2019, respondent’s interim high school principal suspended petitioner for five days for “[a]busive language, [p]rofanity, or [v]ulgarity in word or action.”[1]

In a letter dated December 12, 2019, respondent’s superintendent informed petitioner’s parents that a long-term suspension hearing would be held on December 18, 2019.  

The hearing, presided over by a hearing officer, convened as scheduled.  In a written determination dated December 20, 2019, the superintendent adopted the findings and recommendation of the hearing officer and suspended petitioner through January 24, 2020.  This appeal ensued.

Petitioner argues that he received insufficient notice of the charges against him, which precluded him from mounting an adequate defense at the hearing.  Petitioner also claims that the district failed to adduce competent and substantial evidence of his guilt.  For relief, petitioner requests that the superintendent’s determination be “reversed” and expunged from his record.

Respondent argues that the petition should be dismissed for, among other grounds, failure to exhaust administrative remedies and lack of verification.  On the merits, respondent denies petitioner’s allegations and asserts that the superintendent’s decision was based on competent and substantial evidence.

The appeal must be dismissed for failure to exhaust administrative remedies.  In the case of a suspension in excess of five days, 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 (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258; Appeal of R.A., 48 id. 426, Decision No. 15,903).  There is no evidence in the record suggesting that petitioner appealed the superintendent’s decision to respondent, as required by Education Law §3214(3)(c)(1).[2]  Therefore, petitioner has not exhausted his administrative remedies, and the appeal must be dismissed (Appeal of T.T., 58 Ed Dept Rep, Decision No. 17,446; Appeal of R.A., 48 id. 426, Decision No. 15,903).

The appeal must also be dismissed for lack of verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  As relevant here, a petition must be verified “by the oath of at least one of the petitioners” (8 NYCRR §275.5[a]).[3]  

The petition indicates that petitioner commenced this appeal on his own behalf; however, the affidavit of verification identifies petitioner’s mother as the petitioner in this appeal and appears to have been signed by petitioner’s attorney on behalf of petitioner’s mother.  Because neither petitioner’s mother nor petitioner’s counsel are parties to this appeal, the affidavit of verification does not satisfy the plain language of the regulations.  Therefore, the appeal must be dismissed (Appeal of Waronker, 59 Ed Dept Rep, Decision No. 17,790; Appeal of Valdez, 54 id., Decision No. 16,651; Appeal of D.P., 46 id. 516, Decision No. 15,580).

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




[1] This letter indicated that the suspension was “effective immediately” because petitioner’s presence “pose[d] an ongoing disruption to the education[al] process.”  Petitioner does not raise any challenge to his short-term suspension on appeal.


[2] I note that the superintendent expressly informed petitioner of his right to appeal to respondent in his December 20, 2019 determination letter.  


[3] The regulation provides one exception to this requirement – not applicable here – whereby “any person who is familiar with the facts underlying the appeal” may verify the petition in an appeal brought by “the trustee or the board of trustees or board of education of a school district” (8 NYCRR §275.5[a]).