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Decision No. 14,037

Appeal of MICHELE M. ROEMER, on behalf of her son, TRAVIS J. NORTON, from action of the Board of Education of the North Colonie Central School District regarding student discipline.

Decision No. 14,037

(November 25, 1998)

Roemer & Associates, Esqs., attorneys for petitioner, E. Guy Roemer, Esq., of counsel

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Colonie Central School District ("respondent") upholding a suspension of her son from school for three days. The appeal must be sustained.

In April 1997, petitioner's son was a freshman at respondent's Shaker Senior High School. At some time prior to April 7, he received two "essays" on his home computer from another student. The "essays" may be characterized as a caricature or lampoon of a teacher at the high school, exaggerating and ridiculing the teacher's manner of dress, speech, and teaching style. Petitioner's son printed a copy of these essays from his computer and brought it to school on April 7. Petitioner's son admits only that he showed his copy to one other student. It appears that at least one other student made multiple copies, and that the essays were circulated throughout one class section taught by the teacher. Petitioner's son was questioned by the Hall Principal on April 7 and 8, and was suspended from school for April 9, 10, and 11. The suspension notice states that Travis' offense was "Conduct endangering health, safety, morals or welfare of others." The notice further states that Travis brought two essays to school " . . . and showed them to at least one other student." The suspension has been served; petitioner seeks to have the suspension annulled and expunged from her son's school records.

Petitioner claims that her son's actions did not in any way endanger the health, safety, morals or welfare of any person. She also claims that, after she began an internal appeal of the suspension, the superintendent essentially changed the charge in an April 28, 1997, letter to having " . . . either written or distributed the essay." In the alternative, petitioner argues that a three-day suspension was excessive, was not proportionate to the alleged offense, and did not take into account the fact that her son had no prior disciplinary record.

Respondent claims that the "essays" were untrue, insulting, and threatening to the teacher, and did not strive for a "mutually respectful" relationship with a faculty member, an expectation set forth in various school policies and documents. Respondent denies that the superintendent ever changed the charge or the basis for the suspension, and claims that the "welfare" of the teacher involved was endangered by the essays.

I have considered the "essays" at issue in this matter carefully, and while I find them insulting, demeaning, and in extremely poor taste, I do not find them in any way threatening. I am constrained to sustain the appeal because I do not find that petitioner's son's action in showing copies of these materials to one other student was in violation of school district policies 1000, 5131(a) and (b), or 5139. Policy 5131(a)(1)(c), upon which respondent apparently relies, prohibits conduct endangering the health, safety, morals or welfare of others, by "intimidating or harassing students or school personnel."

Appeal of Swingle (32 Ed Dept Rep 245) is on point. It involved a student who composed a document that contained offensive language and insulted several members of the school community. Another student was discovered trying to copy the document in the high school library. The author of the document was suspended for five school days because " . . . [the student's] document both in content and impact that it had on the school environment represents an endangerment of the safety, morals, health and welfare of other students in attendance at the high school" (32 id. at 246).

In that appeal, the author did not intend to circulate the document generally, and the proof showed that he shared it with only two other students. The superintendent found the document to be offensive, insulting, and mean-spirited in general, and found the author guilty on the charge of endangering the safety, morals, health or welfare of others. However, Commissioner Sobol observed:

Disciplinary determinations under Education Law "3214 must be supported by competent and substantial evidence (Appeal of Barrow, 29 Ed Dept Rep 318, 321; Appeal of Normand, 26 Ed Dept Rep 389, 392, supra; Matter of Dennis, 19 Ed Dept Rep 235, 237). On the record before me, I find that, while respondent may have shown that the "Mind Germ Newsletter" was offensive, it failed to prove by competent and substantial evidence that the student's authorship of the newsletter constituted conduct which endangered the safety, morals, health or welfare of others. Accordingly, the superintendent's determination must be reversed.

The record before me does not indicate that petitioner's son intimidated or harassed any students or school personnel, nor that he engaged in conduct endangering the health, safety, morals or welfare of others, as those words are normally understood. Petitioner's son was not the author of the essays, and played a relatively minor role in this unfortunate matter. I do not in any way condone or approve of his conduct, but I do not find that it rises to the level contemplated by the school's disciplinary policies. While I do not doubt that the teacher in question was deeply offended and suffered some loss of sleep and nervousness as a result of these events, I cannot agree that her health or welfare was "endangered" as that term is used in the policy.

I have decided this matter based upon the particular charge which the district made against this student, and upon prior precedent. This decision should not be interpreted as suggesting that the same or similar conduct, especially if resulting in disruption or disorder, could never be subject to disciplinary action under a carefully written policy on school conduct and discipline, with a properly drawn charge.

I have considered the parties' other contentions, and find them without merit.

THE APPEAL IS SUSTAINED, and

IT IS ORDERED that the disciplinary actions and determinations dated April 8, April 15, April 28, and May 5, 1997, are hereby reversed in so far as they found petitioner's son guilty of endangering the safety, morals, health or welfare of others, and that charge is dismissed; and

IT IS FURTHER ORDERED that the penalty resulting from the superintendent's decision be expunged from petitioner's son's educational records.

END OF FILE