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Decision No. 14,249

Appeal of PEARL HOLT-SILVIN, on behalf of DAVID TACY, from action of the Board of Education of the Mexico Central School District regarding a student suspension.

Decision No. 14,249

(November 18, 1999)

Shanley Law Offices, attorneys for petitioner, Timothy J. Kirwan, Esq., of counsel

Mowry & Mowry, attorneys for respondent, John Michael Mowry, Esq., of counsel

Mills, Commissioner.--Petitioner appeals the decision of the Board of Education of the Mexico Central School District ("respondent") affirming her son’s suspension. The appeal must be dismissed.

On June 19, 1998, Gary P. Smith, Principal of the Mexico High School, telephoned petitioner to inform her that her son, David, had been involved in a fight at school and would not be allowed to return. Although he had been suspended for the previous semester following a fight with a different student in January, David was at school that day to take a final exam. On August 18, 1998, Mr. Smith wrote to petitioner requesting that she contact the superintendent’s office to schedule a superintendent’s hearing, as he previously requested during their conversation on June 19. On September 3 David and petitioner, accompanied by counsel, attended the superintendent’s hearing. On September 9, Superintendent Michael Havens determined that although it was unclear whether he was at fault, David had nonetheless engaged in a fight with another student. He found David guilty of directing foul language toward a school administrator who attempted to break up the fight. David was suspended from participating in all social activities at the high school for an indeterminate time. However, Superintendent Haven directed Mr. Smith to review this "social suspension" at least every ten weeks.

By letter dated September 16, 1998, Mr. Smith advised petitioner that David was suspended for five days for fighting with and making threats against another student and using vulgar language. The letter included two referral slips from teachers and instructed petitioner to contact the district office to schedule a superintendent’s hearing. A hearing was held on September 22, 1998. By letter dated September 24, Superintendent Havens found David guilty of the charges and suspended him for the remainder of the semester until February 1, 1999. Petitioner appealed both suspensions to respondent. On October 8 and 9, respondent reviewed the tape recording of the September 22 hearing, heard from petitioner’s counsel, and voted to uphold the superintendent’s determination to suspend David for the semester. This appeal ensued. Petitioner’s request for interim relief was denied on November 24, 1998.

Petitioner contends that notice of the charges was inadequate, the evidence to sustain the charges was insufficient, and the penalties imposed were excessive. Petitioner further contends that David was selectively disciplined and deprived of his due process rights. Petitioner also objects to a memorandum sent by the superintendent to respondent prior to her appeal as improper, prejudicial and outside the record. In addition, petitioner asserts that respondent failed to provide David with alternative instruction for almost a month. She seeks a reversal of respondent’s determination and expungement of the suspensions from David’s records.

Respondent asserts that the record supports the superintendent’s determinations and maintains that the penalties were appropriate. Respondent also asserts that David was provided with alternative education.

Education Law "3214(3)(c) provides that no pupil may be suspended in excess of five days unless the pupil is given an opportunity for a fair hearing, upon reasonable notice, at which the pupil shall have the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf. What constitutes "reasonable notice" will vary with the circumstances of each case (Bd of Educ of Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133). The charges need only be sufficiently specific to advise the student of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing (Bd of Educ of Monticello Central School District v. Commissioner of Education, et al., supra; Appeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860). In addition, 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 Pinckney, supra; Appeal of Catherine B., 37 Ed Dept Rep 34, Decision No. 13,797; Appeal of A.B., 36 id. 155, Decision No. 13,687).

On October 9, respondent reviewed only the determination made at the second superintendent’s hearing on September 22. Upon review, I find that the notice which provided the basis for the September 22 hearing adequately described the charges. Although David denied hitting the other student, the transcript of the hearing reveals sufficient evidence that David engaged in the behavior charged. Mr. Smith and a teacher, Mrs. Loftus, testified that they observed David scuffling with another student. Mrs. Loftus and another teacher, Mr. Kays, testified that they heard David use vulgar language. Mr. Kays also testified that he heard David threaten the other student. It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts in the record (Appeal of Bowen, 35 Ed Dept Rep 136, Decision No. 13,491). The record here supports the superintendent’s findings. In addition, petitioner’s attorney had adequate opportunity to question those teachers, Principal Smith, and David. I thus see no procedural irregularity that would justify setting aside the finding of guilt concerning the September 16 incident.

The issue then becomes whether the penalty was excessive. In cases of suspension, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689). The test to be applied in reviewing the penalty is whether the penalty imposed was so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of Forestiero, 34 Ed Dept Rep 592, Decision No. 13,419; Appeal of Homick, 34 id. 150, Decision No. 13,265). I find that the penalty imposed in this case for fighting, making threats and using vulgar language is not irrational or unreasonable and is within respondent's discretion. Upon the record before me, including David’s prior disciplinary history, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in finding David guilty and suspending him for a semester.

During its review on October 8 and 9 respondent determined that the semester suspension imposed on September 24 subsumed the social suspension imposed on September 9. Thus, respondent did not review the hearing and determination regarding the June 19 incident. As a result of that incident, David was allowed to begin school on September 9, but was prohibited from participating in social activities. He was then suspended on September 16. Petitioner presents no evidence that David was unable to attend any specific social activity between September 9 and September 16. Thus, although respondent should have reviewed the September 3 hearing and the incident underlying it, the effect of the semester suspension renders the social suspension moot. The Commissioner will decide only 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 Lawson, 36 Ed Dept Rep 450, Decision No. 13,774; Appeal of McCart, et al., 36 id. 363, Decision No. 13,749).

Although petitioner's allegations regarding the social suspension are moot, I am constrained to comment on the procedures used in that suspension. It is undisputed that Mr. Smith failed to provide written notice of the charges against David stemming from the June 19 incident. Absent any written notice of the charges, there is no way to discern what the specific charges were, whether petitioner had fair notice of the charges, the potential penalty, the right to counsel, or the other rights articulated by Education Law "3214. The only written notice came on August 18, when Mr. Smith requested that petitioner schedule a superintendent’s hearing because David had been involved in a fight with another student; there was no notice of a charge of using vulgar language. The record does not contain a transcript or recording of the September 3 hearing. Thus, it cannot be determined whether there was sufficient evidence that David participated in the fight. Respondent is admonished to follow proper procedures regarding suspension notices in the future.

Finally, petitioner contends that David was provided with inadequate alternative instruction under Education Law "3214(3)(e) while he was suspended. In accordance with that section, respondent is obligated to provide adequate alternative instruction to a suspended student of compulsory attendance age (Appeal of Sandra L. 37 Ed Dept Rep 197, Decision No. 13,841; Appeal of Bridges, 34 id. 232, Decision No. 13,291; seealso 8 NYCRR "175.21). Respondent asserts that arrangements were made for David to enroll in "The Academy," a course of instruction run by the Oswego County Board of Cooperative Education for students who have not been successful in their home school. Respondent asserts that although the district’s two allotted slots in the Academy were filled, it nonetheless arranged to enroll David at a cost of $9,000 per year to the district. As of November 6, David had attended classes on only four days, was late on two of those days and was absent for eleven days. Respondent thus contends that although it has satisfied its obligations under "3214(3)(e), David has not availed himself of the instruction. In view of the foregoing, petitioner has failed to establish that respondent has not met its obligations under "3214(3)(e).

I have considered the parties’ remaining arguments and find them without merit.

THE APPEAL IS DISMISSED.

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