Cosme v. Board of Education

50 Misc. 2d 344 | N.Y. Sup. Ct. | 1966

Joseph A. Sarafite, J.

By this article 78 proceeding, petitioner seeks to have her attorney present at a hearing or conference scheduled to discuss her son’s temporary suspension from school because of misconduct. Upon oral argument, the parties agreed that the child should be sent immediately to another school, which he is presently attending. In addition, the court directed that the file be sealed for the protection of and in the interests of the child.

As to the legal proposition involved, it is clear that under the law the Board of Education has the right to establish the procedure — under General Circular No. 11, 1964-1965 — relating to pupil suspension (see Education Law, § 2554, subd. 13; § 3214). It is equally clear that respondent was following designated and proper procedures in scheduling the hearing to consider the child’s future schooling. These hearings are shnply interviews or conferences which include school officials and the child’s parents. Further, they are purely administrative in nature, and are never punitive. The parents are fully apprised of all of the facts and are furnished with copies of all information in respondent’s possession.

Respondent is not statutorily mandated to grant a parent a hearing. Moreover, because the hearing or conference is administrative in nature, the petitioner is not entitled to be represented by counsel. In fact, the very purpose of the interview would be frustrated or impeded by presence of counsel, who might be tempted to turn the conference into a quasi-judicial hearing.

Respondent is vested with discretion in the performance of its duties. Only a clear abuse of such discretion is reviewable by a court, and no such unauthorized action here appears. Accordingly, the petition is legally insufficient. Furthermore, any final determination — which has not here occurred — made in or as a part of a suspension hearing is reviewable by the State Commissioner of Education. Consequently, the application is premature since administrative remedies by way of review have not been exhausted. For the reasons stated, the motion is denied and the petition dismissed.