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Decision No. 18,395

Appeal of R.R., on behalf of her child, from action of the Board of Education of the Baldwin Union Free  School District regarding student discipline.

Decision No. 18,395

(March 25, 2024)

Ingerman Smith LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the decision of the Baldwin Union Free School District (“respondent”) to impose discipline on her child (the “student”).  The appeal must be dismissed.

During the 2022-23 school year, the student attended tenth grade at respondent’s high school.  On September 14, 2022, school officials received a report that the student had engaged in sexual conduct with a classmate in a school stairwell.  The student was called to the office of the dean of students to give a statement.  The student admitted that he had sex with the classmate.  The student also admitted, in a written statement, that the classmate had stated “she didn’t want to” several times during their interaction.  The student also admitted that he had a knife in his backpack.  School officials recovered a 7-inch knife with a 3.5-inch blade and contacted the local police.

By letter dated September 15, 2022, the superintendent scheduled a long-term suspension hearing.  He charged the student with four counts of endangering the welfare of himself and others by:  (1) engaging in nonconsensual, public, sexual contact with another student in a stairwell; (2) engaging in disorderly conduct that disrupted the normal operations of the school community; (3) possessing a knife; and (4) failing to adhere to hallway pass rules and procedures.

The hearing convened on February 15, 2023.[1]  The hearing officer found the student guilty of all four charges and recommended that he remain suspended through the end of the 2023-24 school year, returning to school in September 2024.  On February 23, 2023, the superintendent adopted the hearing officer’s findings and recommendation.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 25, 2023.

Petitioner alleges that the charges in a Family Court proceeding have preclusive effect in this proceeding.[2]  She further alleges that teachers who have worked with the student since his suspension “have had positive experiences with him.”[3]  For relief, she seeks the student’s return to school.

Respondent contends, among other procedural defenses, that the appeal must be dismissed for failure to exhaust administrative remedies.  On the merits, respondent contends that the superintendent’s determination was supported by competent and substantial evidence and that the suspension was reasonable.

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 decision, following a hearing, to suspend a student for a period in excess of five days.  Accordingly, a long-term suspension must be appealed to the board of education prior to review by the Commissioner of Education in an appeal pursuant to Education Law § 310 (Appeal of M.P. and T.P., 59 Ed Dept Rep, Decision No. 17,819; Appeal of J.H. and R.H., 57 id., Decision No. 17,317; Appeal of R.A., 48 id. 426, Decision No. 15,903).  There is no evidence in the record that petitioner appealed the superintendent’s decision to respondent before commencing the instant appeal.  Therefore, the appeal must be dismissed (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,445; Appeal of T.W., 54 id., Decision No. 16,728; Appeal of V.E., 43 id. 244, Decision No. 14,985).

I am nevertheless compelled to comment on the severity of the student’s conduct.  Sexual interactions “on school property [are] grossly inappropriate and unacceptable,”[4] particularly where such activity is nonconsensual (Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242; Appeal of D.B., 45 id. 197, Decision No. 15,299; Appeal of a Student Suspected of Having a Disability, 39 id. 127, Decision No. 14,192).  This, in addition to the student’s possession of a 7-inch knife on school grounds, gravely imperiled the safety and wellbeing of the classmate and the school community (see Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision 15,451).  While petitioner has not proven that the resulting suspension was shocking to the conscience, it is my hope that respondent can help the student learn to assume and accept responsibility for his behavior (Appeal of B.A., 62 Ed Dept Rep, Decision No. 18,209).

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




[1] Counsel for petitioner requested adjournments of the long-term suspension hearing.


[2] This argument is without merit.  As the Commissioner has previously stated, “[t]he criminal justice system and the public schools are separate institutions, and each is independently entitled to address a wrong committed within its respective sphere” (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,617).


[3] Petitioner also complains about the relevancy or probative value of one witness’s testimony.  However, other evidence established the student’s guilt—including his written statement.  Hearsay evidence is admissible in administrative hearings, and hearsay alone may constitute competent and substantial evidence so long as “such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted” (Matter of Agudio v State Univ. of N.Y., 164 AD3d 986, 988 [3d Dept 2018] [internal quotation marks and citations omitted]).


[4] Appeal of C.M., 50 Ed Dept Rep, Decision No. 16,142.