Decision No. 13,240

(August 3, 1994)

SOBOL, Commissioner.--Petitioner appeals respondent's affirmation of its superintendent's decision to permanently suspend her son, Eric, from school. The appeal must be sustained.

Petitioner's papers provide very little concrete information and consist of a one-page petition, a five page statement in which the paragraphs are not numbered and an unclear nineteen-page statement from Eric's grandmother in which the paragraphs are also not clearly delineated. Respondent has likewise submitted an answer which provides a confusing picture of the facts.

In any event, it appears that during June 1993, Eric witnessed "his brother accidentally shoot a friend of theirs while playing with a gun." At the time petitioner commenced this appeal, Eric's brother was being held in a "children center awaiting trial for murder" and Eric "must testify for the prosecuting attorney."

Prior to the beginning of the 1993-94 school year, petitioner, her husband and Eric moved in with the husband's parents, who reside in the Pavilion Central School District, and petitioner enrolled Eric in respondent's schools. On February 1, 1994, Eric was suspended for five days for possessing a knife in school. A hearing was held on February 23, 1994 before a hearing officer pursuant to Education Law '3214(3)(c). Although the record is not clear, it appears that Eric was found guilty of possessing an 8 to 9 inch long knife on school grounds. The record does not disclose what penalty was recommended by the hearing officer. However, the superintendent apparently determined that Eric should be suspended from regular instruction. A final determination by respondent was issued on March 23, 1994. The record does not contain a copy of either the superintendent's or respondent's decision in this matter. There is also no indication in the record as to Eric's age, but he is apparently of compulsory school age because respondent has arranged to provide him with alternative instruction. The record does not set forth the nature of the alternative instruction.

Before addressing the merits of this appeal, it is necessary to review two procedural issues. Respondent contends that the appeal must be dismissed as untimely. Pursuant to 8 NYCRR 275.16, an appeal to the Commissioner of Education must be brought within 30 days of the act or decision complained of. Respondent issued its decision to suspend Eric on March 23, 1994, and petitioner commenced this appeal on April 29, 1994. However, there is no indication as to when petitioner received formal notification of respondent's decision. Therefore, I cannot conclude that petitioner commenced her appeal in an untimely manner. Moreover, any delay in bringing the appeal was minimal, and respondent does not allege it has been prejudiced in any way by such delay.

Respondent also contends that the appeal must be dismissed because the petition was verified by Eric's grandmother rather than petitioner. However, the original petition filed with my Office of Counsel contains a proper verification by petitioner.

Regarding the merits of this appeal, the papers submitted by petitioner seem to argue, among other things, that the penalty imposed is excessive. It appears that respondent has permanently suspended Eric. While respondent is currently providing alternative instruction, such instruction is not required once a student is beyond the age of compulsory attendance. Respondent contends that the penalty is appropriate in view of Eric's anecdotal record. I disagree. While Eric's anecdotal record is extensive, his previous offenses are relatively minor. Respondent particularly relies on a prior incident in which Eric was suspended for three days for having a pellet gun in school. However, the gun was not loaded and was inoperable. Petitioner alleges that another student had delivered the gun to Eric, asking if he could repair it.

Where the penalty is excessive, I will substitute my judgment for that of the board of education in student discipline cases (Appeal of Nathaniel D., 32 Ed Dept Rep 67; Matter of Reynolds, 21 id. 228; Matter of Bruce, 16 id. 143). The fact that the alternative instruction Eric presently receives will not be required once he exceeds the age of compulsory school attendance must also be considered in assessing whether the discipline imposed is excessive (seeAppeal of Nathaniel D., supra). While the possession of a knife on school grounds is serious and merits a substantial penalty, I do not find that the facts of this case warrant Eric's permanent suspension. As noted above, Eric's anecdotal record is not as compelling as respondent alleges. Having determined that a permanent suspension from instruction is disproportionate to the offense and Eric's previous record, I find his suspension from instruction to the end of the 1993-94 school year sufficient to impress upon him the seriousness of his conduct. Any further suspension for this matter is unwarranted.

It is necessary to address two other issues. The record before me indicates that Eric may be a student with a disability pursuant to Article 89 of the Education Law. Petitioner asserts that respondent failed to evaluate Eric despite her two requests that he be evaluated. Respondent contends that petitioner's first request was for psychological help for Eric and not for his evaluation. In any event, there is no indication of respondent's response to the first request.

Regarding petitioner's second request, respondent states that it took action to obtain information from a "psychologist who was already providing counseling services for Eric to determine if an additional evaluation was needed." The record does not indicate if respondent has received that information or what further action respondent has taken on this matter. Respondent is reminded that when it receives a request for referral to its committee on special education, it must immediately arrange for a comprehensive evaluation of a student to determine his or her need for special education. In this case, I will direct it to do so before school begins in September.

Finally, in papers submitted by petitioner, it is apparent that petitioner and her family are convinced that two of respondent's administrators believe Eric is undesirable as a student and have undertaken a campaign of harassing Eric in an effort to drive him out of respondent's schools. In support of that perception, petitioner and Eric's grandmother cite a number of incidents. Respondent has generally denied those allegations. As noted above, petitioner's papers are confusing and incomplete. Accordingly, it is not possible to make a determination on this issue. However, I urge all parties to work cooperatively with each other to provide Eric with the appropriate education to which he is entitled.

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the Board of Education of the Pavilion Central School District admit Eric F. to school commencing on the first day of classes for the 1994-95 school year, and

IT IS FURTHER ORDERED that petitioner's son be immediately referred to respondent's committee on special education for an evaluation before the school year begins, if it has not already undertaken such an evaluation.

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