Decision No. 18,538
Appeal of J.A., on behalf of her child, from action of the Board of Education of the Oswego City School District regarding student discipline.
Decision No. 18,538
(January 14, 2025)
Ferrara Fiorenza, PC, attorneys for respondent, Lindsay A. G. Plantholt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Oswego City School District (the “respondent” or “board”) to impose discipline upon her child (the “student”). The appeal must be dismissed for improper service and failure to exhaust administrative remedies.
Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).
Here, the petition was not personally served upon respondent; it was sent via first class mail. Petitioner submits no reply or evidence that she effectuated personal service of the petition. Accordingly, the appeal must be dismissed (Appeal of T.A., 63 Ed Dept Rep, Decision No. 18,367; Appeal of Lang, 62 id., Decision No. 18,164).
Even if the appeal were properly served, it would be dismissed for failure to exhaust administrative remedies. Petitioner’s mailed petition was received by respondent on October 3, 2024. At that time, petitioner’s appeal of the student’s long-term suspension was still pending with the board. 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). Therefore, the appeal must be dismissed (Appeal of R.R., 63 Ed Dept Rep, Decision No. 18,395; Appeal of a Student with a Disability, 58 id., Decision No. 17,445; Appeal of T.W., 54 id., Decision No. 16,728).
Finally, any special education claims raised by petitioner, including a challenge to the district’s manifestation determination, must be addressed through the Individual with Disabilities Act’s due process provisions (20 USC § 1415 and Education Law § 4404) or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations. Such claims cannot be addressed in an appeal brought pursuant to Education Law § 310 (See Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383; Appeal of M.W., 61 id., Decision No. 18,068).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE