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Decision No. 13,549

Appeal of THOMAS NASCA, SR., on behalf of his son, THOMAS NASCA, JR., from action of the Board of Education of the Somers Central School District regarding student discipline.

Decision No. 13,549

(February 5, 1996)

Russo & Galgano, Esqs., attorneys for petitioner, Louis J. Galgano, III, Esq. and Christopher Riley, Esq., of counsel

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Thomas Nasca, Sr. ("petitioner") appeals the decision of the Board of Education of the Somers Central School District ("respondent") affirming the suspension of his son, Thomas Nasca, Jr., from May 17, 1995 through the end of the 1994-95 school year. The appeal must be dismissed.

At the time of the incident giving rise to this appeal, Thomas was a junior at Somers High School. On May 9, 1995, a student was shouting Thomas's name and threats from below the window of his social studies class. Thomas left the classroom, after being denied permission to do so, and went to the parking lot below to confront the student. Thomas admits that he agreed to fight the student off school grounds and that, as the other student attempted to push him, he grabbed the student's hands. The principal arrived at the scene and the incident ended. The assistant principal took Thomas to his office and contacted his mother to pick him up. He alleges that when Thomas returned to the building he was acting in a violent manner and that he verbally threatened the other student when Thomas later encountered him in the office, requiring the assistant principal to step between them. Thomas was suspended for five days and was charged with participating in a disturbance, endangering the safety of others, and threatening, violent behavior.

On May 17, 1995, respondent held a hearing pursuant to Education Law '3214 at which respondent's superintendent presided. Thomas, his social studies teacher, and the assistant principal testified. The superintendent found Thomas guilty of the conduct charged, and after reviewing his anecdotal record, recommended his suspension for the balance of the 1994-95 school year. On July 6, 1995, at petitioner's request, respondent reviewed and affirmed the superintendent's decision. Petitioner filed this appeal requesting that the suspension be removed from his son's record. He contends that nothing in the record supports the finding nor justifies the suspension imposed.

Education Law '3214(3)(a)(1) authorizes a school district to suspend "a pupil who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others." However, 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 Herzog, 35 Ed Dept Rep ___, Decision No. 13,505 dated November 6, 1995; Appeal of Gorzka, 35 id. 20; Appeal of Homick, 34 id. 150). In the present case, Thomas admits that he left the classroom against his teacher's directives for the purpose of confronting the student who was threatening him and that he agreed to fight the other student. The assistant principal testified as to Thomas's violent demeanor and verbal threats toward the other student. The superintendent found this testimony credible and it, in conjunction with Thomas's admissions, led him to conclude that Thomas was guilty of participating in a disturbance, endangering the safety of others, and threatening, violent behavior. Respondent's findings were not founded on Thomas's physical contact with the other student, but rather his act of confrontation, his violent demeanor and his verbal threats. Consequently, there is no basis to overrule respondent's decision to uphold the superintendent's determination of Thomas's guilt.

After there is a finding of guilt, a student's anecdotal record may be considered in determining an appropriate penalty in a student discipline case (Appeal of Bowen, 35 Ed Dept Rep 136; Appeal of Homick, supra; Appeal of Lewis, 33 id. 520). Thomas's anecdotal record reveals that during the semester in which the events in question occurred, he had been suspended on three occasions and was disciplined for acts of insubordination and disruptive behavior on at least five occasions. Where a penalty is excessive in a student discipline case, 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). Based on the foregoing, I find that the penalty imposed (a suspension of approximately six weeks) was not so excessive that it would warrant substitution of my judgment for that of respondent.

THE APPEAL IS DISMISSED.

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