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Decision No. 12,820

Appeal of RONALD SWINGLE from action of the Board of Education of the City School District of the City of Norwich regarding student discipline.

Decision No. 12,820

(October 14, 1992)

Lester A. Sittler, Esq., attorney for petitioner

Edward S. Nelson, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from a decision of the board of education of the Norwich City School District (the district) suspending petitioner's son from school for two weeks. The appeal must be sustained.

Petitioner's son was a tenth grade student at Norwich High School (the high school) during the 1991-92 school year. On January 9, 1992, school officials discovered a ninth grade student in the high school library attempting to copy a document entitled, "Mind Germ Newsletter." Although the parties dispute the purpose and intent of the document, there is general agreement that the "Mind Germ Newsletter" contained offensive language and insulted several members of the school community. Following an investigation by the high school administration, petitioner's son admitted that he had authored the document.

The high school principal suspended petitioner's son for five school days, beginning January 17, 1992. In a letter dated January 24, 1992, the principal requested the superintendent of schools to conduct a hearing pursuant to Education Law '3214, based on the following:

[the student's] document both in content and impact that it had on the school environment represents an endangerment of the safety, morals, health and welfare of other students in attendance at the high school. As a result of [the student's] document, I believe he placed himself and others in risk of being subjected to physical harm as well as exposing others to profane and vulgar language.

A superintendent's hearing was scheduled for February 24, 1992.

By letter dated February 14, 1992, petitioner's attorney objected to further disciplinary proceedings on the ground that the student had already served a five-day suspension. The attorney contended that any further proceedings arising from authorship of the "Mind Germ Newsletter" would constitute double jeopardy. Notwithstanding this objection, the hearing went forward. On March 10, 1992, the superintendent issued a decision finding petitioner's son guilty on the charge of endangering the safety, morals, health or welfare of others. He imposed a two week suspension. The superintendent found the student not guilty on a related charge of insubordination.

On March 30, 1992, petitioner appealed the superintendent's decision to the board of education (the board). The board upheld the decision on May 18, 1992. Petitioner commenced this appeal on June 17, 1992.

Relying, in part, on my decision in Appeal of Hendrickson (29 Ed Dept Rep 202), petitioner contends that the superintendent's hearing constituted double jeopardy and that the suspension resulting therefrom was improper. In Appeal of Hendrickson, however, the superintendent disciplined a student based on the cumulative effect of several prior incidents of misconduct. Because the student had already been disciplined for each of the prior incidents, the Commissioner of Education found that the superintendent had improperly "punished [the student] twice for the same offense[s]" (id., at 203). The Commissioner emphasized, however, that Appeal of Hendrickson should

... not [] be confused with a situation where a building principal, in conjunction with a short suspension, simultaneously refers a matter to the superintendent for further action, and the superintendent imposes a further penalty as part of the same ongoing proceeding (id., at 203-204).

Indeed, the Commissioner has held that punishment imposed by a superintendent is not duplicative of a suspension imposed by the principal (Appeal of Dash, 28 Ed Dept Rep 107). "A student is frequently suspended by a principal for a short time pending decision by the superintendent whether to proceed with a long term suspension in accordance with Education Law '3214" (id., at 108). Herein, the principal promptly requested a superintendent's hearing, while the student was serving his five-day suspension. Unlike Appeal of Hendrickson, the superintendent's hearing in this case was "part of the same ongoing proceeding" (Appeal of Hendrickson, 29 Ed Dept Rep 202, 203-204, supra). I find that the facts of this appeal fall squarely within the rule set forth in Appeal of Dash (28 Ed Dept Rep 107, 108, supra.). For that reason, petitioner's arguments regarding double jeopardy must be dismissed.

Petitioner also contends that the district failed to satisfy its burden of proof regarding the charge of endangering the safety, morals, health or welfare of others. I agree. In a prepared statement that he read into the record, the high school principal stated he had brought the charge against petitioner's son because, in his view, "[t]he publication of the `Mind Germ Newsletter' disrupted the entire educational process at Norwich High School." The principal, however, was the only witness to testify for the district. In support of the charge, the principal cited a verbal "face-off" between petitioner's son and another student. There is no evidence in the record, however, that the "Mind Germ Newsletter" caused that confrontation. The principal also stated that the atmosphere at Norwich High School was "tense" for approximately two weeks after the "Mind Germ Newsletter" was distributed. Again, however, there is no evidence in the record establishing a causal connection between the "Mind Germ Newsletter" and the alleged tension in the school community. Indeed, the record shows that the "Mind Germ Newsletter" was not the first document of its kind to circulate in the school.

In his decision, the superintendent relied upon testimony from the principal that "[t]here were numerous threats of bodily harm to students and name calling, all directly or indirectly related to the publication of this document." In a '3214 hearing, however, the testimony of administrators without personal knowledge of alleged incidents is insufficient to establish guilt (see, Appeal of Normand, 26 Ed Dept Rep 389, 392). There is no indication in the record that the principal had personal knowledge of the alleged threats of bodily harm or name calling. Even if he had personal knowledge of such incidents, however, there is no factual basis in the record to support the principal's opinion that they were precipitated by the "Mind Germ Newsletter."

The record confirms that petitioner's son never intended to circulate the "Mind Germ Newsletter." To the contrary, he shared the document with only two students. As the student testified, "I ... asked [the first student] to give it to [the second student] and I asked him not to show it to anybody else or do anything with it cause [sic] I just wanted him to see it for a joke." The student also testified that he only wrote the "Mind Germ Newsletter" to parody a document promoting anarchy which had been written and circulated by another student. The superintendent acknowledged that the student's testimony was unrefuted. Nonetheless, because the superintendent found the document to be "offensive, insulting and mean-spirited in general," he found petitioner's son guilty on the charge of endangering the safety, morals, health or welfare of others.

Disciplinary determinations under Education Law '3214 must be supported by competent and substantial evidence (Appeal of Barrow, 29 Ed Dept Rep 318, 321; Appeal of Normand, 26 Ed Dept Rep 389, 392, supra; Matter of Dennis, 19 Ed Dept Rep 235, 237). On the record before me, I find that, while respondent may have shown that the "Mind Germ Newsletter" was offensive, it failed to prove by competent and substantial evidence that the student's authorship of the newsletter constituted conduct which endangered the safety, morals, health or welfare of others. Accordingly, the superintendent's determination must be reversed.

THE APPEAL IS SUSTAINED, and

IT IS ORDERED that the superintendent's decision, dated March 10, 1992 is hereby reversed insofar as it found petitioner's son guilty of endangering the safety, morals, health or welfare of others; and that charge is dismissed; and

IT IS FURTHER ORDERED that the penalty resulting from the superintendent's decision be expunged from petitioner's son's educational records.

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