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Decision No. 13,449

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Appeal of PAMELA GORZKA, on behalf of her son, PATRICK CLARK, from action of the Board of Education of the Cornwall Central School District, regarding student discipline.

Decision No. 13,449

(July 13, 1995)

H. Scott Ziemelis, Esq., attorney for petitioner

Scott & Hoyt, Esqs., attorneys for respondent, Julius Larkin Hoyt, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the suspension of her son, Patrick, from the Cornwall High School for the remainder of the 1994-95 school year. The appeal is sustained in part.

On December 19, 1994, Patrick allegedly set a fire in a boys' bathroom in the Cornwall High School. The high school was evacuated and the local fire department extinguished the fire. The high school principal suspended Patrick for five days, effective January 9, 1995. On January 13, 1995, the superintendent held a hearing pursuant to Education Law '3214. The superintendent found Patrick guilty and suspended him from school for the remainder of the 1994-95 school year. On March 6, 1995, petitioner appealed the superintendent's determination to respondent board of education ("respondent"). On March 14, 1995 respondent upheld the superintendent's finding of guilt and affirmed the penalty. This appeal followed.

Petitioner asserts that respondent affirmed the findings of fact of the superintendent in violation of Education Law '3214. Petitioner further asserts that the superintendent's findings were arbitrary and capricious. Additionally, petitioner contends that the hearing process violated Patrick's due process rights by failing to allow petitioner to question witnesses. Respondent contends that the hearing held pursuant to Education Law '3214 provided Patrick with all process due him.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Lewis, 33 Ed Dept Rep 520; Appeal of Pierrot, 33 id. 67; Appeal of Kittell, 31 id. 419). In this case, it is undisputed that on the day of the fire, Patrick was permitted by a teacher to go to the boys' bathroom where the fire occurred. The teacher testified that approximately two or three minutes after Patrick's return from the bathroom, a second student went to the same bathroom, but returned immediately to inform the teacher about the fire. From these facts alone, respondent inferred Patrick's guilt. Respondent apparently presumed that since Patrick was in the bathroom two or three minutes prior to the time that the teacher learned of the fire, Patrick must have set the fire. While respondent asserts that there was an investigation of the incident, respondent fails to establish whether the investigation ruled out the possibility of another student from another classroom entering the bathroom after Patrick left, but before the fire was discovered. The record also does not establish how the fire was started or whether it could have been smoldering while Patrick was in the bathroom. Accordingly, I find that respondent failed to establish Patrick's guilt by substantial and competent evidence.

In view of the foregoing, I find it unnecessary to address petitioner's remaining contentions.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent expunge all references to the suspension from Patrick's records.

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