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Decision No. 13,234

Appeal of MARION JOHNSON, on behalf of her son, TUMANI, from action of the Board of Education of the Southampton Union Free School District regarding student discipline.

Decision No. 13,234

(August 1, 1994)

Harriet A. Gilliam, Esq., attorney for petitioner

Richard S. Fernan, Esq., attorney for respondent

SOBOL,Commissioner.--Petitioner challenges the suspension of her son for seven days. The appeal must be sustained.

Petitioner's son, Tumani, is an eleventh grade student at Southampton High School in respondent school district. On December 7, 1993, Tumani was allegedly involved in an incident with another student. In a letter dated December 8, 1993, respondent notified petitioner that Tumani would be suspended from December 8 until December 14, 1993 for harassment of another student. Pursuant to Education Law '3214, a hearing was scheduled for December 14, 1993, but was rescheduled for December 15, 1993 to allow petitioner time to retain counsel. Petitioner notified respondent of her desire to question student witnesses at the hearing.

On December 15, 1993, Tumani returned to school. However, he was removed from the regular educational setting and placed unilaterally by the superintendent in an "alternative school program". The hearing was convened on December 15, 1993, but was adjourned at the parties' request pending receipt of parental consent for student witnesses to testify. Such consent was not received, and the hearing was reconvened on January 11, 1994. Petitioner's counsel acquiesced to the continuation of the hearing, but objected to respondent's refusal to present student witnesses for testimony either voluntarily or through subpoena. The only witness presented by respondent at the hearing was the high school principal. The principal testified that she had no first-hand knowledge of what occurred and based her testimony on comments made to her by other individuals and Tumani.

At the hearing, prior to the determination of guilt, the principal testified regarding previous incidents of discipline and misconduct involving Tumani. Respondent asserts the reason for the testimony about these prior incidents was to demonstrate that "the hearing was because of an accumulation of incidents" (answer of respondent). On January 18, 1994, the superintendent determined Tumani was insubordinate and guilty of endangering the safety and well being of another student. No mention was made in the superintendent's report of a suspension; it simply set forth conditions upon which Tumani could re-enter the regular education program of respondent school district in lieu of attending the alternative program. On March 17, 1994, respondent affirmed the superintendent's determination. This appeal followed.

Petitioner asserts that respondent violated Tumani's due process rights and Education Law '3214 by failing to allow petitioner to question complaining witnesses. Petitioner seeks a reversal of respondent's determination and further seeks to expunge this suspension from Tumani's record. Respondent's main assertion is that it did not fail to make complaining witnesses available because the complaining witness was the school district as represented by the principal and not the student witnesses.

Education Law '3214(3)(c) states:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf. (emphasis supplied)

The conduct of a disciplinary hearing held in the absence of witnesses to the events which form the basis for suspension is inconsistent with a student's statutorily guaranteed right to question witnesses against them (Ross v Disare, 500 F.Supp 929; Matter of Inman, 15 Ed Dept Rep 506). Respondent's assertion that the complaining witness is the school district and not an individual with first-hand knowledge of the incident is a disingenuous attempt to circumvent Tumani's right to cross-examine witnesses. Respondent asserts that some of the principal's information came not from student witnesses, but a school monitor. Even if no student witnesses were asked to testify, respondent fails to explain why this school monitor, presumably a first-hand witness, did not testify. The record reflects the sole determining factor in respondent's findings against Tumani was the testimony of the principal. No testimony or documents articulating the events were presented by any witnesses with first-hand knowledge of the incident. Therefore, since petitioner had no opportunity to cross-examine witnesses with direct knowledge of the incident, I find the determination of the superintendent null and void.

Additionally, it is well established that a student's anecdotal record cannot be admitted except in aiding the hearing officer in assessing the penalty (Appeal of Norwood, 31 Ed Dept Rep 464; Appeal of Stokes, 25 id. 117). By respondent's own admission, Tumani's anecdotal record was admitted prior to the finding of guilt to show an accumulation of incidents, and to demonstrate that the January 11, 1994 hearing was held consistent with school district policy to discipline students for continuing wrongs. However, petitioner was only notified that the hearing would address the December 7, 1993 incident involving the "harassment of another student". The notice of the hearing does not reference a series of events. Therefore, respondent's consideration of Tumani's anecdotal record prior to a determination of guilt was clearly improper.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that petitioner's son's record be expunged of any reference to the December 8 through 14, 1993 suspension, and

IT IS FURTHER ORDERED that petitioner's son be placed in a regular education program.

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