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Decision No. 13,975

Appeal of ROBERT D. and BARBARA D., on behalf of their daughter, from action of the Board of Education of the Manhasset Union Free School District regarding student discipline.

Decision No. 13,975

(July 25, 1998)

Jerry I. Lefkowitz, attorney for petitioners

Rains & Pogrebin, P.C., attorneys for respondent, Richard K. Zuckerman, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the disciplinary measures imposed upon their daughter by the Board of Education of the Manhasset Union Free School District ("respondent"). The appeal must be dismissed.

In March 1996, petitioner's daughter participated in a drama exchange bus trip to Quebec, Canada. After the students returned, respondent's principal was informed that some students had been drinking alcohol on the bus trip. The principal and assistant principal conducted an investigation, questioning each of the students who participated in the drama exchange.

When questioned during the investigation, petitioner's daughter admitted that she drank alcohol on the bus trip. Respondent's student discipline policy indicates that, for a first offense, possession or use of alcoholic beverages on school sponsored activities warrants a five day out of school suspension. The principal suspended petitioner's daughter for five days for her misconduct. He also suspended her from all school social activities for the remainder of the year. On March 19, petitioners met with the principal and assistant principal to discuss the incident, their daughter's admission and the suspensions imposed. Petitioners appealed to respondent's superintendent of schools, who upheld the principal's decision.

Thereafter, petitioners appealed to respondent, and a hearing was held in executive session to consider the appeal. Petitioners were represented at the hearing by counsel. At the conclusion of the hearing, respondent deliberated over the evidence presented. Respondent upheld the five-day suspension but, in recognition of petitioners' daughter's honesty in admitting her misconduct, rescinded her suspension from school social activities. This appeal ensued.

Petitioners challenge the five-day suspension as excessive and seek expungement of their daughter's records. Petitioners do not raise any procedural objections in relation to the disciplinary action, nor do they assert that their daughter did not engage in the misconduct. Petitioners argue that their daughter was intimidated into making the admission of misconduct without her parents or counsel present. They also assert that the principal abused his discretion by not imposing a lesser penalty and that the principal assured their daughter that, if she were honest and admitted her conduct, she would be treated leniently. Finally, petitioners argue that, because other students avoided punishment by refusing to admit their misconduct, their daughter likewise should not be punished. Respondents contend that the five-day suspension is an appropriate penalty and that the disciplinary action was in all respects proper.

In appeal before the Commissioner of Education, petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Lupiani, 36 Ed Dept Rep 355). Here, petitioners do not contest that their daughter drank alcohol on the school bus trip in violation of the school disciplinary policy. Instead, they assert that the admission was coerced through intimidation. I do not find that assertion supported in the record. Petitioners state that, during the investigation, their daughter had to wait for some time outside the principal's office and observed other students coming out of the office visibly upset. Although such observations might have been upsetting to petitioners' daughter, I do not find them evidence of intimidation on the part of respondent's administrators. In any event, because petitioners do not contest that their daughter engaged in the misconduct which was the basis for the discipline, in this instance their assertions provide no basis for nullifying the suspension.

Petitioners also claim that, because the infraction was their daughter’s first offense, a lesser penalty should have been imposed. They contend, therefore, that respondent's principal improperly refused to exercise his discretion in imposing a five-day suspension. The record indicates that both the superintendent and respondent reviewed and agreed with the suspension imposed, and that it comports with respondent's discipline policy. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Alexander, 36 Ed Dept Rep 160; Appeal of Durkee, 20 id. 94). The test to be applied in reviewing the propriety of a particular penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Alexander, supra; Appeal of Forestiero, 34 Ed Dept Rep 592; Appeal of Homick, supra. Where a penalty is excessive, the Commissioner will substitute his judgment for that of the board of education (Appeal of Tietje, 34 Ed Dept Rep 567; Appeal of Stewart, 34 id. 193). Based on the record, I cannot conclude that a five-day suspension for use of alcohol on a school trip is so excessive as to warrant the substitution of my judgment for that of respondent. Moreover, respondent did exercise discretion when it rescinded the imposition of its principal's suspension of petitioners' daughter from school social activities.

Petitioners also assert that respondent's principal assured their daughter that, if she told the truth, she would be treated leniently. The record contains no evidence in support of petitioners' claim. To the contrary, respondent submits affidavits by its principal in which he denies making such statement. As noted above, petitioners have the burden of establishing the facts on which their claims are based (8 NYCRR "275.10). In this instance, petitioners have failed to do so.

Finally, petitioners complain that, unlike their daughter, other students avoided disciplinary action by refusing to admit to engaging in the misconduct for which their daughter was suspended. While such behavior on the part of the other students is regrettable, it does not provide a basis for nullifying the discipline imposed upon petitioners' daughter. The record establishes that she engaged in the misconduct and the penalty imposed is appropriate therefor.

THE APPEAL IS DISMISSED.

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