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Decision No. 13,505

Appeal of JEFFREY and MIRIAM HERZOG, on behalf of their son, JOSH, from action of the Board of Education of the Monticello Central School District, regarding student discipline.

Decision No. 13,505

(November 6, 1995)

Mark Lewis Schulman, Esq., attorney for petitioners

Baum & Shawn, Esqs., attorneys for respondent, Henri Shawn, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the suspension of their son, Josh, from school by the Board of Education of the Monticello Central School District ("respondent"). The appeal must be sustained.

On January 13, 1995, the principal of the Monticello High School suspended Josh for five days. On or about January 17, 1995, respondent's superintendent sent petitioners notice of a hearing pursuant to Education Law '3214. The underlying charge stated:

Josh Herzog, a student of the Monticello High School...is accused of conduct endangering the safety, health or welfare of others as more particularly described in Section 3214(3) of the Education Law of the State of New York in that, on or about January 13, 1995, and on the days preceding that date, the student did participate in the preparation and/or distribution and/or dissemination of a newspaper type publication calling for destruction of property and insubordination.

On January 19, 1995, a hearing was held in accordance with Education Law '3214. Petitioner, his parents and attorney were present. An independent hearing officer presided. The hearing officer found that the testimony of the assistant principal of the Monticello High School, along with other evidence presented at the hearing, proved that Josh participated in the publication and distribution on school grounds of an unauthorized newspaper containing vulgar language and calling for the destruction of school property and for acts of insubordination. The hearing officer recommended a five-day suspension in addition to the initial five-day suspension, with John scheduled to return to school on January 31, 1995. On January 20, 1995, respondent's superintendent accepted the hearing officer's decision. On February 6, 1995, petitioners appealed the superintendent's determination to the board of education. On February 21, 1995, the board of education upheld the superintendent's determination. This appeal followed.

Petitioners assert that Josh's due process rights were violated because he was found guilty of an act with which he was never charged. Specifically, Josh was found guilty of publishing and distributing certain materials on school grounds, even though the charges against Josh never specified that the conduct in question occurred on school grounds. Petitioners also contend that the findings of guilt are not supported by the evidence. Respondent contends that Josh's due process rights were fully protected by the notice and the hearing procedure.

I agree that Josh was not afforded due process in this matter. Because the charges for which Josh was disciplined did not state that the distribution of the newspaper occurred on school grounds, they did not give Josh and his counsel fair notice of the issues that would be raised at the hearing. While it is certainly not necessary that the charges in a student disciplinary proceeding be as specific as those required in a criminal proceeding, they must be at least sufficient to apprise the student and his counsel of the conduct against which they have to defend (Matter of Curtis, 16 Ed Dept Rep 15; Matter of Rose, 10 id. 4). The hearing officer's determination that Josh was guilty of publishing and distributing the newspaper on school grounds, even though the charges never once referenced school grounds, was prejudicial to petitioner. He simply had no notice that respondent would be presenting evidence to prove conduct on school grounds, and thus could not properly formulate a defense.

Moreover, I find that the hearing officer's determination of guilt is unsupported by the record. The decision to suspend a student from school must be based on competent and substantial evidence that the student actually participated in the conduct charged (Appeal of Gorzka, 35 Ed Dept Rep 20; Appeal of Lewis, 33 id. 520; Appeal of Kittell, 31 id. 419; Appeal of Ezard, 29 id. 135). In this case, respondent failed to present evidence that Josh distributed the papers anywhere, let alone on school grounds. The sole basis for the hearing officer's findings that Josh distributed the papers on school grounds was the testimony of an assistant principal. This assistant principal testified that he spoke with Josh about the newspaper. Specifically, he testified that Josh told him: "he had published them, printed them and brought them to school. And copied them. Excuse me. And copied them at a copy machine someplace in town." The assistant principal further testified that several copies of the paper were found in the cafeteria and in some classrooms. However, there was no evidence linking Josh with the actual distribution of those papers. At best, respondent proved that Josh created the papers off school grounds, and brought them to school. However, this does not, in and of itself, prove that Josh was guilty of their distribution.

After reviewing the record of this case in its entirety, I am constrained, for the reasons set forth above, to overturn respondent's decision. This result, however, should not be read as an endorsement of the kind of behavior with which Josh was charged. It rather reflects only the deficiencies in respondent's case. Inciting the destruction of school property is unacceptable and dangerous behavior which cannot be tolerated under any circumstances.

Based on the foregoing, I will not address petitioners remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent expunge all references to the suspension from the records of Josh Herzog.

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