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Decision No. 14,364

Appeal of JEFFREY and TAMMY M., on behalf of their daughter, CARISSA M., from action of the Board of Education of the Horseheads Central School District regarding student discipline.

Decision No. 14,364

(May 18, 2000)

LoPinto, Schlather, Solomon & Salk, attorneys for petitioners, Diane V. Bruns, Esq., of counsel

Sayles, Evans, Brayton, Palmer & Tifft, attorneys for respondent, James F. Young, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the Horseheads Central School District ("respondent") to suspend their daughter on June 2, 1999 for the remainder of the 1998-99 school year and for the entire 1999-2000 school year. The appeal must be sustained in part.

On May 25, 1999, a bomb threat was written on a stairway wall at Horseheads High School and students were evacuated to the football field, as required by respondent’s emergency plan. The football field is approximately 200 yards from the high school building and is fenced in. Prior to the evacuation of students during a bomb threat, law enforcement and school staff first secure the area to ensure its safety so that students are evacuated in the most orderly manner possible and kept under school supervision. Following the May 25 bomb threat, an investigation was conducted by school officials in cooperation with the Horseheads Village Police Department.

On May 26, 1999, students began reporting to guidance counselors, social workers, administration and teachers rumors to the effect that there was to be another bomb threat and that students would be shot at the football field when evacuated. During an investigation, the principal interviewed students who identified petitioners’ daughter as the student responsible for the rumors. As a result, respondent was forced to modify its evacuation plan to quell student fears that they would be harmed or killed if they retreated to the football field, as previously instructed, during a bomb threat.

On June 1, 1999, the principal met with petitioners and their daughter to discuss allegations that she was responsible for the bomb threat rumors. After the meeting, petitioners’ daughter was suspended for five days, beginning Wednesday, June 2 through the end of the school day on Tuesday, June 8, 1999. Home instruction was arranged because, at the time of the incident, petitioners’ daughter was fourteen years old, and of compulsory school age.

A hearing was held on June 8, 1999 pursuant to Education Law "3214 with the assistant superintendent presiding. Petitioners and their daughter were present at the hearing. The police officer who supervised the investigation testified that the police chief reported that petitioners’ daughter told him that she knew who was making the bomb threats. He testified further that numerous statements were taken from individuals supporting a Family Court petition against petitioners’ daughter for making a false report involving bombs. He also testified that petitioners’ daughter denied making a threat, but admitted discussing theories on what would happen when students were evacuated to the football field. The student’s mother testified that the rumor originated at their dinner table when her husband expressed concern about evacuation to the football field because someone could be out there with a gun.

The student testified that she repeated the family’s dinner table conversation to another student in the school cafeteria and that this apparently led some students to think a subsequent bomb threat would occur. The student to whom she spoke testified that petitioners’ daughter told her about the shooting "theory" on Wednesday, May 26 in the cafeteria and advised her to "run" during an evacuation in order to avoid being shot on the football field. She also testified that other students made similar statements after May 26 that were repeated through telephone and internet conversations over the weekend. The principal testified that petitioners’ daughter told other students that she knew who wrote the bomb threat on the stairway wall and that there would be gunmen present at a future evacuation. He stated that the rumor created substantial anxiety, fear and tension throughout the school.

The hearing decision was issued on June 9, 1999, finding petitioners’ daughter guilty of having endangered the safety, health and welfare of other students and recommending her suspension from Horseheads High School for the remainder of the 1998-1999 school year and all of the 1999-2000 school year. Home tutoring was recommended for the end of the 1998-1999 school year with arrangements for an alternative educational program for the 1999-2000 school year to be made prior to September 1999. By letter dated June 9, 1999, the superintendent advised petitioners that he concurred with the hearing officer’s recommendation. In response to a letter from petitioners dated June 24, 1999, the superintendent explained the process for appealing his determination to respondent in a letter to petitioners dated July 27, 1999. Respondent considered petitioners’ appeal at its August 9, 1999 meeting and adopted the decision of the Superintendent. Petitioners commenced this appeal on September 16, 1999, seeking an order overturning respondent’s decision and reinstating their daughter to Horseheads High School.

Petitioners contend that no students were endangered by anything their daughter said and that her comments concerning the possible presence of gunmen at the football field during evacuation were her own speculative "theories" stemming from a discussion at the family dinner table concerning the May 25 bomb threat. Petitioners also contend that the suspension is an excessive penalty and not warranted by anything established at the superintendent’s hearing.

Respondent contends that its decision is supported by evidence in the hearing record establishing that petitioners’ daughter is guilty of endangering the health, welfare and safety of students at Horseheads High School. Respondent argues that her statements frightened numerous students who subsequently sought assistance from guidance counselors, social workers, teachers and school administrators. Respondent argues further that greater harm was averted only because school officials were able to change the location for student evacuation to the south gym, south cafeteria and the Center Street Elementary School, thereby preventing students from fleeing in panic with the next bomb threat.

A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Cynthia and Robert W., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Bowen, 35 id. 136, Decision No. 13,491; Appeal of Homick, 34 id. 150, Decision No. 13,265). In an administrative proceeding such as this, neither proof beyond a reasonable doubt nor corroboration is necessary (Appeal of Lago, 38 Ed Dept Rep 723, Decision No. 14,126). The record indicates that petitioners’ daughter appeared at the hearing and admitted telling at least one student about the danger of gunmen at the football field during evacuation. The testimony of the principal and police officer establish that petitioners’ daughter admitted to police and school authorities that she made these statements which resulted in harm to students who were frightened by them and who subsequently required assistance from school staff. The record indicates that respondent’s evacuation plan was disrupted and had to be replaced in order to quell student fears that they would be harmed or killed if they retreated to the football field during a bomb threat, as previously instructed. Upon the record before me, I find that respondent’s decision is based on competent and substantial evidence that petitioners' daughter made statements that endangered the safety, health and welfare of other students.

With regard to penalty, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689; Appeal of Durkee, 20 id. 94, Decision No. 10,329). The Commissioner has upheld penalties similar to the penalty imposed by respondent here in cases where the student was found guilty of either making an actual bomb threat (Appeal of Joseph F., 39 Ed Dept Rep 242, Decision No. 14,226; Appeal of B.B., 38 id. 666, Decision No. 14,113) or participating in the discharge of an explosive device in a school building (Appeal of Knispel, 35 Ed Dept Rep 145, Decision No. 13,494). By contrast, in the present case petitioners' daughter was not found guilty, or even charged with, misconduct rising to that level of severity. Rather, the charge against petitioners' daughter was starting a rumor speculating about the possibility of a bomb threat.

In addition, there is no evidence in the record that the hearing officer took petitioners' daughter's anecdotal record into account when determining the recommended penalty. In fact, there is no evidence that petitioners' daughter had a record of any prior disciplinary infraction.

While I am sympathetic to respondent’s need to deter rumors that may interfere with the safe evacuation of a school building, given the circumstances of this case and the lack of evidence in the record of prior misconduct by petitioners’ daughter, I find her suspension for the remainder of the 1998-99 school year and for the entire 1999-2000 school year disproportionate to the offense. In my view, any further suspension of this student is unwarranted.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the Board of Education of the Horseheads Central School District re-admit petitioners’ daughter to its schools, and

IT IS FURTHER ORDERED that petitioners’ daughter’s record be modified consistent with this decision.

END OF FILE