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Decision No. 13,689

Appeal of SUSAN ALEXANDER, on behalf of MARCUS ALEXANDER, from action of the Board of Education of the West Irondequoit Central School District regarding student discipline.

Decision No. 13,689

(October 17, 1996)

Fiandach & Fiandach, attorneys for petitioner, Michael P. Scibetta, Esq., of counsel

Lynda M. Van Coske, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the West Irondequoit Central School District ("respondent") affirming her son's suspension. The appeal must be sustained in part.

During the 1995-96 school year, petitioner's son, Marcus, was a ninth grade student in respondent's high school. On February 8, 1996, a teacher allegedly overheard a conversation between Marcus and another student and interpreted it to relate to a drug transaction. As a result, the two students and their lockers were searched. A knife with a three and one-half inch blade was found in the pocket of Marcus's coat, which was in his locker. The principal suspended Marcus for five days and requested a superintendent's hearing, which was held on February 16. At that hearing, Marcus admitted to having the knife but said that he had accidentally brought it to school. He explained that it was a hunting knife that his grandfather had given him and that he had forgotten it was in his coat pocket. Marcus's father spoke on Marcus's behalf, indicating that he was not violent and did not present a safety threat. The hearing officer found Marcus guilty of insubordination and endangerment, and the superintendent suspended him from school from February 16, 1996 until April 8, 1996, required him to attend counseling, and ordered him to perform 20 hours of community service. The board of education affirmed the decision and penalty on February 27, 1996. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on March 28, 1996.

Petitioner claims that she was not afforded due process with respect to the superintendent's hearing and that the penalty imposed was excessive. Respondent denies these charges and raises a number of defenses including mootness.

Respondent argues that the appeal should be dismissed as moot because Marcus served his suspension and re-entered school on April 8, 1996, as scheduled. Indeed, the Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of the Bd. of Educ., East Ramapo Central School Dist., 35 Ed Dept Rep 542). However, where, as here, the disciplinary action remains on the student's record, a live controversy remains and the appeal will not be dismissed as moot (Appeal of Wilson, 28 Ed Dept Rep 254).

Petitioner contends that her son was denied due process. Specifically, she alleges that the charges were inadequately stated on the hearing notice, leading her to believe that the hearing was related to drug allegations rather than weapon possession charges. While it is not necessary that the charges in a student disciplinary proceeding be as specific as those required in a criminal proceeding, they must be sufficient to apprise the student and his or her parents of the conduct against which they have to defend (Appeal of Herzog, 35 Ed Dept Rep 173; Matter of Curtis, 16 id. 15).

The record before me does not support petitioner's contention that the notice of charges was insufficient. The hearing notice mailed to petitioner and her husband stated that Marcus was charged with insubordination and endangerment and referred to an enclosure containing "specific charges." The enclosure -- a copy of the principal's letter to the superintendent requesting a hearing -- stated:

The charges for the hearing are insubordination and endangerment.

On February 8, 1996, a staff member overheard a conversation between Marcus and another student regarding a sale of drugs. The conversation included an exchange of money. Following that conversation, Marcus' locker was searched, and a knife with a three and one half inch blade was found. Possession of the knife is in direct violation of high school and board of education policies regarding weapons on campus.

Furthermore, respondent contends that the Assistant High School Principal and the Assistant for Instructional Services articulated to petitioner's husband during telephone conversations on February 8, 1996 and February 13, 1996, respectively, that weapon possession was the basis for the five-day suspension and the long-term suspension hearing.

Petitioner also contends that the timing of the notice was insufficient to enable her to retain legal counsel and that she was unaware that she could request an adjournment. Specifically, she alleges that she received the hearing notice on February 14, 1996 and opened it after 5 p.m. on that day, giving her only eight business hours on February 15 to obtain counsel before the hearing on February 16. She contends that if she were represented by counsel, Marcus might not have made certain admissions and she would have been aware of her right to subpoena witnesses.

Respondent contends that its Assistant for Instructional Services contacted petitioner's husband by phone at approximately 9 a.m. on February 13, 1996 -- three days before the hearing -- to arrange for a mutually convenient time for the suspension hearing and, at that time, advised him of his right to retain counsel.

Education Law '3214(3)(c) provides the opportunity for a fair hearing, upon reasonable notice. "The requirements of an adequate notice vary in proportion to the circumstances of the event" (Carey v. Savino, 91 Misc.2d 50, 52). One day's notice is generally considered a violation of one's due process rights because it does not provide adequate opportunity to obtain counsel (Carey v. Savino, supra). However, in this case, it is disingenuous for petitioner to rely on a claim of insufficient written notice when on February 13, 1996 her husband agreed to the February 16, 1996 date, thereby ensuring that written notice would be received no earlier than February 14, 1996. Therefore, I do not find that respondent violated petitioner's due process rights by providing insufficient time between the written notice and the hearing to retain counsel.

Petitioner also requests that the penalty be set aside as excessive. Respondent's superintendent suspended Marcus from school from February 16, 1996 until April 8, 1996 (29 school days), required him to attend counseling sessions, and ordered him to perform 20 hours of community service. Education Law '3214 only authorizes suspension from attendance as a penalty for the offenses enumerated in the statute. A school district cannot condition a student's return to school on participation in counseling services (Appeal of Holliday, 29 Ed Dept Rep 373; Appeal of Ezard, 29 id. 135; Appeal of Ward, 27 id. 217), nor is it authorized to impose a community service requirement as a penalty. Therefore, references to these penalties must be removed from Marcus's disciplinary records. I note, however, that districts are not precluded from recommending counseling in circumstances where a student may benefit from such services, and that a student should seriously consider employing such services where they can be helpful in addressing the issues underlying the behavior problem.

As to the suspension, in cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Durkee, 20 Ed Dept Rep 94). The test to be applied in reviewing the penalty in a case of student discipline is whether the penalty imposed by the board was so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Forestiero, 34 Ed Dept Rep 592; Appeal of Homick, 34 id. 150). Where a 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).

Petitioner argues that Marcus has no record of violent behavior and that the knife was a hunting knife that he accidently brought to school. Although Marcus does not have a record of violent behavior, weapon possession is a serious matter and must be sanctioned accordingly. Moreover, a summary of Marcus's anecdotal record indicates 16 detentions during the 1995-96 school year, with notations indicating instances of disruptive and inappropriate behavior, smoking, and missing class. In light of these facts, I find that the penalty imposed is neither excessive nor inconsistent with past Commissioner's decisions (Appeal of Judy F., 34 Ed Dept Rep 81).

I have considered petitioner's remaining claims and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the disciplinary records of Marcus Alexander all references to the counseling and community service requirements resulting from this incident.

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