Appeal of K.M., on behalf of her son G.M., from action of the Board of Education of the Baldwin Union Free School District regarding student discipline.

Decision No. 15,261

(July 28, 2005)

John J. McGrath, Esq., attorney for petitioner

Ingerman Smith L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, G.M., by the Baldwin Union Free School District ("respondent"). The appeal must be dismissed.

On March 31, 2005, petitioner's son, a ninth grader in respondent's high school, was involved in an altercation in the school cafeteria. G.M. was suspended for five days and a superintendent's hearing was held on April 18, 2005. The hearing officer found G.M. guilty of engaging in a serious altercation, endangering himself and others and contributing to the injury of three staff members. He recommended G.M. be suspended until March 2006 (G.M.'s 16^th birthday) with home instruction and permanently suspended thereafter with no home instruction. The superintendent adopted the hearing officer's finding of guilt, but reduced the recommended penalty to suspension until June 30, 2006 with home instruction. This appeal ensued. Petitioner's request for interim relief was denied on July 1, 2005.

Petitioner maintains that her son is not guilty of the offense, that the punishment is excessive and that the notice of charges was defective. Petitioner also claims she notified respondent prior to the incident that she suspected her son may have a disability and that the hearing officer should not have proceeded with the hearing until this issue was addressed.

Respondent claims that it had no notice that petitioner suspected her son had a disability. It contends that the notice of charges against G.M. was sufficient and that the finding of guilt and punishment were appropriate. Respondent also asserts that the appeal should be dismissed as premature and for failure to exhaust administrative remedies since petitioner did not appeal the superintendent's decision to respondent board.

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.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of D.C., 41 id. 190, Decision No. 14,661). The record indicates that petitioner did not appeal the superintendent's decision to respondent board. Accordingly, I must dismiss the appeal for petitioner's failure to exhaust her administrative remedy.

Based on the foregoing disposition, I need not address the other issues raised by the parties.

THE APPEAL IS DISMISSED.

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