Petitioner's son D.S. is a student in the ninth grade at Maine-Endwell High School in Broome County. On March 5, 2007, he was overheard by several other students making a threatening remark about one of his teachers, after that teacher had approached him regarding his apparent lack of attention during a previous class. He was suspended from school for five days, commencing on March 7, 2007 (there was no school on March 6th due to bad weather). During that suspension, petitioner was notified that the matter would proceed to a Superintendent's hearing, pursuant to Education Law § 3214 (3)(c).

On March 19, 2007, the hearing began. Because D.S. has a learning disability, and is classified as a disabled student under the Individuals with Disabilities Education Act (IDEA), the disciplinary hearing was preceded by a "manifestation meeting," the purpose of which is to determine whether the charged misconduct is a manifestation of the student's disability. Here, no such connection was found. D.S. was ultimately found guilty of the charges, and the matter proceeded to a penalty hearing.

On March 14, 2007, the sixth day of D.S.'s suspension from school, petitioner commenced this proceeding and brought the instant motion by order to show cause, seeking a court order restoring D.S. to his prior placement pending the outcome of the ongoing administrative proceedings. The three causes of action set forth in the complaint were premised upon allegations that respondents violated the law by suspending D.S. for more than five days without holding a hearing and/or conducting a manifestation conference. Although those steps have now been taken, petitioner continues to urge the court to reinstate D.S. into his high school classes, on the grounds that the District violated his rights by, inter alia, conducting the manifestation meeting before there had been any determination of guilt.

Insofar as the proceeding (and the present motion) may be viewed as mounting a challenge to the propriety of any of respondent's determinations - that D.S.'s misconduct was not a manifestation of his disability, that he actually engaged in conduct for which discipline was warranted, or that the penalty imposed was appropriate - on the merits, or on the ground that proper procedures were not followed in reaching those determinations, the proceeding must be dismissed for failure to exhaust administrative remedies. Petitioner's procedural and substantive challenges to the manifestation determination may be raised in an impartial hearing sought pursuant to 8 NYCRR 201.11 (in fact, such a hearing has apparently been held, and a decision is expected shortly). Should petitioner not obtain the desired relief in that forum, the hearing officer's decision may be appealed to a State Review Officer, pursuant to 8 NYCRR § 200.5 (k). The disciplinary findings of guilt and imposition of a penalty may be appealed in accordance with the procedures outlined in Education Law § 3214 (3)(c). Until all available relief has been sought through these administrative channels, judicial proceedings are premature (see, Matter of Johnson v Board of Educ. of City of NY, 62 Misc 2d 929, 931-932 [1970]; Matter of Cosme v Board of Educ. of City of NY, 50 Misc 2d 344, 345 [1966], affd 27 AD2d 905, lv denied 19 NY2d 972 [1967]; cf., Matter of Patti Ann H. v New York Med. Coll., 88 AD2d 296, 300 [applying doctrine of primary jurisdiction]).

And, insofar as petitioner is merely seeking an interim stay of the suspension, pending review of her procedural and substantive arguments by the appropriate administrative tribunals, she has not established any right to such relief. The governing regulations provide that where, as [*2]here, an expedited impartial hearing is sought to challenge a determination of the manifestation team, pursuant to 8 NYCRR § 201.11, the student shall remain in the alternate placement (i.e., that resulting from the disciplinary sanction) pending the determination of the impartial hearing officer (8 NYCRR 201.11 [d]). The state regulations are, in this respect, consistent with the applicable federal regulations (see, 20 U.S.C. § 1415 [k][4][A]); petitioner's attempt to rely on the "stay put" provision of § 1415 (j) disregards the specific exception made therein for the precise situation at hand, which is governed by § 1415 (k)(4).

Accordingly, the motion must be, and hereby is, denied, and the action is dismissed. This decision shall constitute the order of the court.

Dated: April 6, 2007

Cortland, New York

_________________________________

HON. Phillip R. Rumsey

Supreme Court Justice

ENTER