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Decision No. 14,241

Appeal of ALDITH L., on behalf of her son JASON L., from action of the Board of Education of the Greenburgh Central School District regarding student discipline.

Decision No. 14,241

(November 2, 1999)

Oliver A. Smith, Esq., attorney for petitioner

Arnold B. Green, attorney for respondent, Giacchino J. Russo, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the permanent suspension of her son Jason from school by the Board of Education of the Greenburgh Central School District ("respondent"). The appeal must be sustained in part.

This appeal concerns a series of incidents that began on November 2, 1998, when a teacher at respondent’s high school asked a student wearing headphones in violation of district policy to remove them. The student apparently ignored the teacher’s request and walked into the student cafeteria, prompting the teacher to summon a hall monitor to help her identify the offending student. After the teacher pointed out the student to the monitor in the cafeteria, the student, G.C., ran up to the teacher and began yelling at her. During the teacher’s confrontation with G.C., two students appeared on either side of her, while petitioner’s son, Jason, appeared behind her. The teacher then felt someone, who she believed to be Jason, push against her from behind, with what felt like his chest. The teacher immediately reported this incident to the principal.

The principal referred the matter to Spencer Davis, Administrator of Student Life, for investigation. After personally interviewing the hall monitor, G.C., Jason, the teacher, the three students who had witnessed the incident, and the principal, Mr. Davis concluded that Jason had not pushed the teacher, but decided to nevertheless recommend a one-day internal suspension to the principal because he felt Jason had "invaded the teacher’s personal space". However, contrary to Mr. Davis' recommendation, respondent’s high school principal, Paul Gross, suspended Jason for five days after speaking to Mr. Davis, meeting with G.C. and Jason, and reviewing the written statements of two of the three student eye-witnesses. Mr. Gross did not meet personally with the three student eye-witnesses. Moreover, he suspended Jason without notifying Jason’s parents in writing, as required by the Commissioner’s regulations.

After being detained by Dean Davis for investigation of the cafeteria incident, Jason sought out the teacher who he believed had wrongly accused him. He confronted her in her classroom in between class periods, and yelled that he "didn’t appreciate [her] lying about him". The teacher refused to discuss the matter with Jason and asked him to leave the room. He refused. Although the teacher testified at the subsequent disciplinary hearing that Jason also "put his hand on her shoulder to push [her]", she never recorded this important fact in the written statement executed shortly after the incident.

At the end of the following school day, Jason went to the teacher's classroom and accused her of wrongly causing his suspension. He cursed and threatened her. During this encounter, Jason ignored the teacher’s directive to leave the classroom and pushed her when she attempted to leave. After the teacher locked Jason out of the classroom, he remained outside yelling and kicking the classroom door. The teacher then opened the door and walked past Jason to summon assistance. Jason apparently continued to threaten and push the teacher as she walked down the hall. Another teacher who witnessed Jason follow the teacher part way down the hall described Jason as "expressing his upset over the fact he felt [the teacher] wasn’t talking to him about his being expelled (sic)".

By letter dated November 4, 1998, Dr. Anthony L. Mazzullo, respondent’s Superintendent of Schools, notified Jason’s parents that Jason had been charged with assaulting a teacher, and that a disciplinary hearing would be conducted on November 10, 1998.

At the hearing, at which Jason was represented by counsel, the district presented evidence of the three incidents that had occurred. By letter dated November 12, 1998, the superintendent informed Jason’s attorney that, based on the evidence presented at the hearing, he had found Jason "guilty of assaulting a teacher on all of the occasions to which the teacher testified Jason pushed and/or shoved her."

After considering Jason’s anecdotal record, the superintendent notified petitioner’s counsel by letter dated November 17, 1998 that Jason would be permanently suspended from the district. Petitioner appealed this determination to respondent. By letter dated March 12, 1999, the district clerk informed petitioner’s attorney that Jason’s initial five-day suspension would be expunged from his record because the district had failed to notify Jason’s parents of that suspension, and that respondent had otherwise voted to sustain the superintendent’s decision. At the time of this determination, Jason was a 16 year old student in respondent’s high school. This appeal ensued.

Petitioner alleges that her son was denied due process because respondent failed to provide him with adequate notice of the allegations that would be considered during the hearing. She also claims that the superintendent’s decision was not supported by substantial evidence and that the punishment imposed was excessive. In addition, petitioner claims that her son was deprived of a fair hearing because the hearing officer was one of several officials who responded to the teacher’s call for assistance on November 3, 1998, and because the attorney who represented the district has a "business relationship" with the district and its officials. Finally, petitioner claims that respondent has failed to provide her son with appropriate alternative instruction.

Respondent contends that petitioner’s son was afforded due process at every stage of the proceeding, the hearing officer’s determination is supported by substantial evidence, and the penalty imposed was not excessive. Additionally, respondent contends that it has provided petitioner’s son with appropriate alternative instruction.

In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which he seeks relief, and the burden of demonstrating a clear legal right to the relief requested (Appeal of Shabazz, 38 Ed Dept Rep 481, Decision No. 14,076; Appeal of Uebel, 38 id. 375, Decision No. 14,058).

I find that petitioner has not sustained her burden of establishing that the hearing officer was biased simply because he responded to the teacher’s request for assistance on November 3, 1998. There is nothing in the record to suggest that the superintendent was an eye- witness to any of the incidents in question that would warrant his disqualification as hearing officer. The record reflects that the superintendent responded to the teacher’s call for assistance after Jason had left the scene of the November 3, 1998 incident. Moreover, even if the superintendent did obtain some information about the event, his mere possession of such knowledge is not a violation of petitioner’s due process rights. Due process is not violated unless the hearing officer with prior knowledge of the underlying event allows this prior knowledge to improperly influence his decision or uses his prior knowledge as a basis for his decision as an alternative to evidence presented during the hearing (Appeal of Meredith, 33 Ed Dept Rep 530, Decision No. 13,138). On the record before me, there is no basis to conclude that Dr. Mazzullo allowed any prior knowledge of events to influence his decision.

Nor has petitioner sustained her burden of establishing that she was denied due process because the attorney representing the district at the disciplinary hearing has an ongoing relationship with respondent. Petitioner cites no legal authority to support this contention. Petitioner’s conclusory assertion that counsel’s business relationship with the district deprived her son of his right to a fair hearing is insufficient to establish a due process violation.

Furthermore, petitioner has not established that her son was deprived of due process by the timing of the notice of the superintendent’s hearing. 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). In Carey, Supreme Court found one day’s notice of a superintendent’s hearing inadequate because it did not afford the petitioner sufficient opportunity to obtain counsel.

Here, the record reflects that respondent’s superintendent informed petitioner by letter dated November 4, 1998 that her son had been charged with assaulting a teacher and that a superintendent’s hearing was scheduled for Tuesday, November 10, 1998. Petitioner received this notice on Friday, November 6, 1999 and appeared at the November 10, 1998 hearing with counsel. Although counsel noted that his client had received the notice only four days before, he did not assert that he was unable to proceed with the hearing. To the contrary, the record reflects that counsel was able to effectively represent petitioner’s son. I have previously found a notice period of three days to be sufficient (see, Appeal of Derosa, 36 Ed Dept Rep 336, Decision No. 13,741). Under the circumstances presented here, I find that the four-day notice provided to petitioner was adequate.

I also find that the notice was sufficient to apprise Jason of the charges against him. The Court of Appeals has recently stated that the charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing." (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133). "As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served." (Id.)

Significantly, the Court of Appeals recognized in Monticello that although student disciplinary hearings are serious and adversarial in nature, students are not entitled to the protections of a criminal trial (Board of Education of Monticello Central School District v. Commissioner of Education, supra). Although in this case, the superintendent’s letter stated only that Jason had been charged with assaulting a teacher, petitioner has failed to establish that respondent’s notice did not adequately apprise Jason that his three interactions with the teacher over the November 2 and 3, 1998 period would be considered during the disciplinary hearing. There is nothing in the record to suggest that petitioner was surprised by respondent’s proof. Rather, the record reflects that petitioner’s counsel effectively and competently defended Jason against the charges. Accordingly, I find that petitioner has failed to establish that respondent’s notice denied him due process (see, Appeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860).

Although I find the notice under the particular facts of this case minimally sufficient, I am compelled to note that it was regrettably sparse. Respondent accused Jason of "assault", yet did not delineate how many assaults took place or when they allegedly occurred. I direct respondent that in the future, notice of a superintendent’s hearing should include, at the very least, the date of the incident(s) and a brief description of the nature of the conduct that is alleged to have occurred.

The decision to suspend a student from school must be based on competent and substantial evidence that the student actually participated in the conduct charged (Board of Education of Monticello Central School District v. Commissioner of Education, supra, at 140-141; Appeal of Uebel, supra; Appeal of Shelli, 37 id. 725, Decision No. 13,968). A hearing officer may draw reasonable inferences if the record supports the inference (Board of Education of Monticello Central School District v. Commissioner of Education, supra; Appeal of Uebel, supra).

I find that the teacher’s testimony regarding the November 3, 1998 incident (where Jason followed the teacher down the hallway) constitutes substantial evidence to support the superintendent’s determination that Jason assaulted the teacher on that date. As commonly understood and defined in Webster’s New Collegiate Dictionary, assault means "a violent physical or verbal attack". The teacher’s testimony that Jason directed threatening and profane language at her and pushed her, both in the classroom and as she walked down the hall, is sufficient to establish that Jason engaged in assaultive behavior on November 3.

However, I reach a contrary conclusion with respect to the two incidents that took place on November 2, 1998. As to the cafeteria incident, Mr. Davis testified that, after speaking to the teacher, three student eye-witnesses, each of whom stated that Jason did not push the teacher, and the hall monitor who stated that he did not see Jason push the teacher, he concluded that Jason did not push the teacher. Nor was there any proof that Jason used threatening or abusive language. Although the principal testified that he had credited the teacher’s version of the event, the record reflects that he reached that conclusion without having personally interviewed the three student eyewitnesses. In light of the fact that Mr. Davis -- the only school official to speak directly to the student eye-witnesses -- concluded that Jason did not push the teacher, I find that the superintendent’s finding -- that Jason assaulted the teacher in the cafeteria -- is not supported by the record.

Although it is not clear whether the hearing officer found that Jason’s November 2, 1998 confrontation with the teacher in her classroom constituted an assault, I find the teacher’s description of the event insufficient to support a finding of an assault. Although any touching of a teacher by a student is inappropriate, proof that Jason "put his hand on [the teacher’s] shoulder to push [her]" does not rise to the level of a physical assault where there is no evidence in the record that he actually did, in fact, push her. Similarly, although Jason’s refusal to leave the room and verbal accusations were disrespectful and insubordinate, they do not amount to an assault, the behavior with which Jason was charged. Because the district charged Jason solely with assaulting the teacher, I am constrained to find that the record does not contain substantial evidence to support a finding of assault with respect to this incident.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Uebel, 38 Ed Dept Rep 375, Decision No. 14,058; Appeal of Cynthia and Robert W., et al., 37 id. 437, Decision No. 13,899). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board (Appeal of Uebel, supra; Appeal of Cynthia and Robert W., et al., supra). A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances such as where it is necessary to safeguard the well-being of other students (Appeal of McNamara, 37 Ed Dept Rep 326, Decision No. 13,871; Appeal of Osoris, 35 id. 250, Decision No. 13,531).

Although I find Jason’s behavior to be extremely serious, based on my factual findings and the record before me, I do not find that the circumstances presented here are so extraordinary as to justify Jason’s permanent suspension from school. The entire record in this case supports one incident of assault that consisted of threatening and pushing a teacher. It is also apparent that, while such behavior is unacceptable, it was likely motivated by Jason’s belief that he was wrongly accused, and not by an intent to harm the teacher.

As noted above, permanent suspension is an extreme penalty, which is generally educationally unsound except under the most extraordinary circumstances (Appeal of McNamara, 37 Ed Dept Rep 326, Decision No. 13,871; Appeal of Nathaniel D., 32 Ed Dept Rep 67, Decision No. 12,760). The Commissioner has sustained a permanent suspension in the rare case where the evidence of extreme behavior compelled no other proper result (seee.g., Appeal of Sole, 34 Ed Dept Rep 270 (student was the instigator and primary participant in a major disturbance in the cafeteria, and was observed throwing two chairs, turning over a large lunch table and throwing two food trays like a "frisbee", and had an extensive anecdotal record that included involvement in four food fights, a physical fight with another student, an assault on a student, an act of vandalism of school property, endangering middle school students by jumping fully clothed into a pool while a class was in session, being found in an unauthorized area of school on six occasions and insubordination on four occasions). The Commissioner upheld the permanent suspension after observing that the student had exhibited "an alarming disregard for the safety of others". Seealso, Appeal of McNamara, id., where petitioner broke into respondent’s high school on New Year’s Eve armed with three propane bottles, a claw hammer and a hacksaw with the intention of interfering with the school’s heating and electrical systems. The record in that case reflects that if the student had succeeded in his plan, the possibility of an electrical fire or explosion the following day when the building was fully occupied was not remote.

In both the McNamara and the Sole cases, the Commissioner reluctantly upheld the permanent suspensions, notwithstanding the seriousness of the offenses, citing the districts’ "need to safeguard the well-being of other students" and the potential liability for failing to take appropriate steps to prevent injury from the reasonably foreseeable intentional acts of a student (Mirand v. City of New York, 84 NY2d 44). Although Jason’s misconduct is serious, it does not present the type of extraordinary circumstances present in McNamara and Sole justifying the extreme penalty of permanent suspension.

Where the penalty is excessive I will substitute my judgment for that of the board of education in student discipline cases (Appeal of Judy F., 34 Ed Dept Rep 81, Decision No. 13,240). Although I find a permanent suspension to be excessive given the nature of the act and Jason’s anecdotal record, Jason’s conduct is nonetheless serious and worthy of significant punishment. Accordingly, I find that a one year suspension is sufficient to impress upon Jason that such conduct will not be tolerated.

Finally, I find that petitioner has failed to sustain her burden of establishing that respondent has failed to provide her son with appropriate alternative instruction. Petitioner simply states in conclusory fashion that respondent has failed to provide her son with consistent home tutoring, but fails to provide any specific allegations to support her assertion. Respondent contends that it currently provides tutoring services to Jason. Respondent explains that it had previously suspended tutoring services to Jason after learning that he was enrolled in an adjoining school district, but resumed those services after Jason re-enrolled in respondent’s district. Based on the record before me I do not find any basis to award relief on petitioner’s claim that respondent has failed to provide her son with appropriate alternative instruction. However, I remind respondent that it is obligated to act reasonably promptly in providing alternative instruction when a pupil of compulsory school age is suspended pursuant to Education Law "3214 (Appeal of Bridges, 34 Ed Dept Rep 232, Decision No. 13,291).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner’s son be admitted to respondent’s schools commencing on November 3, 1999.

IT IS FURTHER ORDERED that respondent modify Jason’s records consistent with this opinion.

END OF FILE