Decision No. 13,692

(October 17, 1996)

John M. Zenir, Esq., attorney for petitioner

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Sachem Central School District ("respondent") to affirm his son's suspension. The appeal must be sustained in part.

Following an incident on December 4, 1995, petitioner's son, Thomas, was accused of fighting and purchasing what he thought was a controlled substance. On December 7, 1995, petitioner and Thomas met with the principal, resulting in a five-day in-school suspension pending a superintendent's hearing. After a hearing on December 12, 1995, the superintendent imposed a three-month suspension and required Thomas to obtain substance abuse counseling. The Board of Education affirmed the decision on January 31, 1996. This appeal ensued.

Petitioner claims that his due process rights were violated, that the decision was not based on competent and substantial evidence, that the penalty imposed was excessive, and that the alternative education provided was inadequate. He asks that the suspension be voided and removed from his son's school records. Petitioner's request for interim relief pending a determination on the merits was granted on February 14, 1996.

First, petitioner contends that he was denied due process at the principal's meeting, specifically that he was not notified of his rights and was not given the opportunity to question complaining witnesses. The procedures set forth in Education Law '3214 do not apply to in-school suspensions (Appeal of Forster, 31 Ed Dept Rep 443; Appeal of Danison, 31 id. 169; Appeal of Watts, 23 id. 459). Nonetheless, the procedures governing any suspension of student privileges or the imposition of discipline must be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of Forster, supra; Appeal of Danison, supra; Appeal of Watts; supra). Section 275.10 of the Commissioner's regulations requires that a "petition contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Goldman, 35 id. 126). Upon the record before me, petitioner has not met the burden of establishing that the procedures followed at the principal's meeting were unfair.

Petitioner also alleges that the hearing officer's findings were not based on competent and substantial evidence, but rather on hearsay. Respondent contends that the findings were based on substantial non-hearsay evidence -- specifically, admissions by Thomas.

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). While admissions are an exception to the hearsay rule in New York, reporting of an admission by a third party is hearsay, unless it is covered by another hearsay exception. However, hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (Gray v. Adduci, 73 NY2d 741; Eagle v. Paterson, 57 NY2d 831).

The hearing officer made the following findings of fact:

Based on these findings and Thomas's record, the superintendent imposed a three-month suspension during which Thomas was required to receive substance abuse counseling.

Based on the record before me, I do not find that all of the findings of fact are supported by substantial and competent evidence. For example, I find no support for the finding that Thomas grabbed Mr. Bloomfield by the neck. However, I do find sufficient evidence to support the findings that Thomas is guilty of the acts with which he was charged, i.e., purchasing what he thought to be a controlled substance and fighting. A student can only be found guilty of an act with which he was charged (Appeal of Herzog, 35 Ed Dept Rep 173).

I find that Thomas's guilt with respect to both charges is supported by substantial and competent evidence. Three witnesses testified at the hearing -- High School Principal Mr. Cardillo, and two students, D.M. and B.B.. Neither the victim nor petitioner's son testified. Both Mr. Cardillo and B.B. testified that Thomas admitted to them that he had purchased what he thought was marijuana. As to the allegation of fighting, D.M., who claims he was present at and participated in the incident at the bus stop, testified that Thomas grabbed Mr. Bloomfield by the shirt and swung at him. With respect to findings of fact in matters involving credibility of witnesses, I will not substitute my judgment for that of the hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of McCreery, 34 Ed Dept Rep 426; Appeal of the Bd. of Educ., Greater Johnstown City School District, 30 id. 89). Based on the record before me, I find no reason to substitute my judgment for that of the hearing officer as to the credibility of these witnesses.

Petitioner also requests that the determination and penalty be set aside as excessive. 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). A penalty must be reasonable in light of the harm incurred and the degree of danger presented (See, e.g.,Appeal of Bowen, 35 Ed Dept Rep 136; Appeal of Sole, 34 Ed Dept Rep 270). 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).

First, it should be noted that Education Law '3214 only authorizes a school district to suspend a student as a penalty for the enumerated offenses, and previous cases have made it clear that 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). However, districts are not precluded from and should not be discouraged from recommending counseling in situations involving drug-related activities or violent behavior.

With respect to the length of the suspension, Education Law '3214(3) provides that "[a] pupil who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others" may be suspended from required attendance. Thomas was found guilty of endangering the safety, morals, health or welfare of others by attempting to purchase a controlled substance and by fighting. This conduct cannot be condoned. Although the record does not indicate any previous disciplinary actions against Thomas, I do not find that a penalty of three months is excessive in light of the seriousness of these charges.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent arrange for Thomas Hamet to serve the remainder of the three-month suspension imposed on December 12, 1995.

IT IS FURTHER ORDERED that respondent correct the disciplinary records of Thomas Hamet to remove any references to required counseling.

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