Decision No. 13,531
Appeal of EDGAR OSORIS and JASON W. OSORIS, from action of the Board of Education of the Chenango Forks Central School District regarding student discipline.
Decision No. 13,531
(January 13, 1996)
Daniel L. Gorman, Esq., attorney for petitioner
Hogan & Sarzynski, Esqs., attorneys for respondent, Michael Surowka, Esq., of counsel
MILLS, Commissioner.--Jason W. Osoris, a student, and Edgar Osoris, his father, ("petitioners") appeal the decision of the Board of Education of the Chenango Forks Central School District ("respondent") to suspend Jason until the close of the 1996-97 school year. The appeal must be sustained in part.
At the time of the incident giving rise to this appeal, Jason was an 18-year-old high school student in the Chenango Forks Central School District. On June 7, 1995, the high school principal suspended Jason for five days after an encounter with the principal during which Jason allegedly used inappropriate language and failed to follow directives.
Jason was charged with four violations of respondent's Discipline Code for Student Behavior:
Pronounced disrespect toward any faculty, staff member or other person supervising students;
Failure to comply with the directions of a teacher, administrator or other school employee;
Using profane, vulgar, abusive language or words which may incite another person; and
Any willful act which disrupts the normal operation of the school community.
On June 14, 1995, respondent held a hearing pursuant to Education Law '3214 at which the hearing officer found Jason guilty of the conduct charged, and after reviewing his anecdotal record, recommended suspension for the balance of the 1994-95 school year and for the 1995-96 and 1996-97 school years. Upon review, the superintendent accepted the hearing officer's findings and recommendation, and on August 15, 1995, at petitioners' request, respondent reviewed the superintendent's decision. When respondent affirmed the superintendent's decision, this appeal followed.
Petitioners request that the determination and penalty be set aside as excessive. Regarding petitioners' challenge to the finding of guilt, 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 Homick, 34 Ed Dept Rep 150; Appeal of Lewis, 33 id. 520; Appeal of Pierrot, 33 id. 67). The record established that the hearing officer's determination of guilt was based on competent and substantial evidence. Jason does not dispute that he engaged in some of the conduct of which he was found guilty. Consequently, there is no basis to overrule respondent's decision upholding the determination of guilt.
With respect to penalty, where the penalty is excessive, I will substitute my judgment for that of the board of education (Appeal of Tietje, 34 Ed Dept Rep 567; Appeal of Stewart, 34 id. 193; Appeal of Nathaniel D., 32 id. 67). Jason's anecdotal record reveals that Jason was disciplined for acts of insubordination and disruptive behavior 34 times during the 1994-95 school year, including incidents of abusive language, failing to follow directives, and smoking on school grounds. While petitioners challenge the accuracy and appropriateness of certain entries in the anecdotal record, they concede five of the entries. However, I need not pass judgment on the contents of the record. Even if the anecdotal record were undisputed, I would find respondent's penalty excessive.
The penalty in this case is the equivalent of a permanent suspension, since Jason will turn 21 during the first semester that he can be readmitted into school and needs to earn more than one semester's worth of credit to graduate. A permanent suspension of a student is an extreme penalty which is generally educationally unsound except under the most extraordinary circumstances (Appeal of Tietje, supra; Appeal of Nathaniel D., supra; Appeal of Felice, 29 Ed Dept Rep 332), such as where it is necessary to safeguard the well-being of other students (Appeal of Sole, 34 Ed Dept Rep 270).
Given the circumstances of this case, including my consideration of the student's past record, I find that the term of Jason's expulsion is disproportionate to the offense. Jason's record is similar to that of the student in Appeal of Homick (supra) in which a one semester suspension (January to June) was found appropriate. Moreover, Jason's conduct is less egregious than that of other students who have been suspended for similar periods of time. For example, in Appeal of Judy F. (34 Ed Dept Rep 81), the Commissioner reduced a permanent suspension to five months where a student, who had an extensive anecdotal record, was found guilty of possessing a knife in school.
I find this student's suspension from instruction to the date of this decision, approximately one semester, sufficient to impress upon him the seriousness of his conduct. Any further suspension of this student is unwarranted at this time.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the Board of Education of the Chenango Forks Central School District admit Jason W. Osoris to school immediately.
END OF FILE