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Decision No. 14,392

Appeal of DONNA OLIVER, on behalf of SHEVALEETTE OLIVER, from action of the Board of Education of the Brentwood Union Free School District regarding student discipline.

Decision No. 14,392

(June 19, 2000)

Harriet A. Gilliam, Esq., attorney for petitioner

Bernard T. Callan, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Brentwood Union Free School District ("respondent") to suspend her daughter Shevaleette Oliver. The appeal must be dismissed.

This appeal stems from an incident that occurred on November 9, 1998 off school premises at the entrance to Ross High School. At the time, Shevaleette was an 11th grade student attending the district’s P.M. school, an alternative school held between the end of the regular day school and the start of the Evening High School. Although eyewitness testimony varies, it is undisputed that at approximately 2:45 p.m., a vehicle struck a girl near the entrance to the high school. The driver, Mr. Centeno, testified that as he was exiting the school parking lot, he saw a group of teenagers at the school entrance. He testified that one of the boys shoved a girl into the left side of his car. Apparently, as the girl fell, the car struck her leg. Mr. Centeno testified that a girl, later identified as Shevaleette, approached his car, began threatening and cursing him and said she was going to beat him up because he had hit her friend. He testified further that Shevaleette’s actions induced several other individuals to surround his car, curse and attack him. The incident ultimately required police intervention and Mr. Centeno sustained injuries to his face that required six stitches.

After an investigation of the incident, Mark N. Nizewitz, the district’s Director of Secondary Education, informed petitioner by letter dated November 16 that Shevaleette was suspended from the P.M. school for five days beginning November 17. Mr. Nizewitz stated that "Shevaleett[sic] is being suspended for endangerment in that on Monday November 9, 1998, while on probation and under the provisions of a previous Superintendent’s Hearing, she instigated a riotous situation by initiating an attack on a person and his vehicle after a traffic accident at the Ross Center entrance to Brentwood High School. Due to the serious nature of this incident a Superintendent’s Hearing will be requested." Thomas P. O’Brien, the High School Principal, sent a second letter, also dated November 16, with the same charge, indicating that the five-day suspension would begin on November 16. Both letters indicated that petitioner needed to schedule a conference.

On November 17, respondent’s superintendent Les Black sent a third letter, stating that Shevaleette was "under suspension for endangering the health, safety, and welfare of herself and others and insubordination in that while on probation and under the provisions of a previous Superintendent’s Hearing, she instigated a riotous situation . . .." Superintendent Black also informed petitioner of the date of the superintendent’s hearing, her right to legal counsel and her need to make arrangements for any witnesses she desired to present at the hearing.

On November 24, 1998, Associate Superintendent Michael Fasullo conducted a superintendent’s hearing at which Shevaleette was charged with endangerment and insubordination. Mr. Fasullo found Shevaleette guilty and recommended that she be excluded from attendance within the Brentwood Public Schools. By letter dated November 25, 1998, Superintendent Black adopted Mr. Fasullo’s recommendations excluding Shevaleette from the district’s schools but allowing her, if she chose, to continue her education through the Evening High School program. On December 10, petitioner appealed to respondent, which upheld the superintendent’s determination on January 27, 1999. This appeal ensued. Petitioner’s request for interim relief was denied on March 16, 1999.

Petitioner contends that the initial suspension was illegal because Mr. Nizewitz and Mr. O’Brien lacked authorization to suspend Shevaleette because neither was a principal of the P.M. school she attended. Petitioner contends further that she was denied due process because she was not given notice of the insubordination charge prior to the hearing, was never afforded the opportunity to meet with Mr. O’Brien or Mr. Nizewitz and was denied access to certain witnesses for the November 24 hearing. Additionally, petitioner contends that the proof of guilt is inadequate, the guilty finding failed to specify which charge or charges she was found guilty of, and the superintendent’s decision constitutes an illegal transfer.

Respondent asserts that Shevaleette had notice of both the endangerment and insubordination charges prior to the hearing, was afforded due process, engaged in the charged behavior and was properly suspended.

First, petitioner claims that the initial suspension was unauthorized. Education Law "3214(3) provides that the board of education or superintendent may suspend pupils from attendance. Section 3214(3)(b) provides further that a board of education may delegate "to the principal of the district, or the principal of the school where the pupil attends, the power to suspend a student for a period not to exceed five school days." Mr. Nizewitz, the district’s Director of Secondary Education, sent the suspension letter on November 16. According to respondent, Mr. Nizewitz’ responsibilities include sole supervising authority of the P.M. school, which Shevaleette was attending at the time. As such, he is effectively acting as the "principal" of the school she attended, and thus is authorized to issue suspensions. In addition, in this instance, letters of suspension were also sent by Mr. O’Brien, the Principal of the High School which Shevaleette attended prior to her attendance at the P.M. school, and Superintendent Black, both of whom are also authorized to issue suspensions. Accordingly, petitioner’s allegation that the suspension was unauthorized is without merit.

Education Law "3214(3)(c) provides that no pupil may be suspended for a period 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 (Appeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860; Matter of Rose, 10 id. 4, Decision No. 8154). Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings; 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 (Bd. of Educ. of Monticello Central School District, supra).

Petitioner claims she had no notice of the insubordination charge prior to the charges being read at the hearing. The record indicates that petitioner received three letters notifying her of Shevaleette’s suspension. The letters from Mr. Nizewitz and Mr. O’Brien charge Shevaleette only with endangerment. Respondent contends that any misconduct by a student while on probation from an earlier charge automatically constitutes insubordination. Since the letters also state that Shevaleette’s behavior on November 9 occurred while on probation and under the provisions of a previous superintendent’s hearing, respondent claims that petitioner had sufficient notice.

In reviewing only those two letters, I would agree with petitioner that there was insufficient notice of the insubordination charge. However, Superintendent Black’s letter, sent only one day after the others and a full week before the hearing, specifically included the charge of insubordination. Accordingly, I find that petitioner had sufficient notice of both charges. However, I urge respondent to review its suspension letters with an eye toward communicating more complete information to parents in the future.

Petitioner claims further that she was denied due process during the hearing. Petitioner chose not to be represented by counsel at the November 24 hearing. Recognizing this on the record, Mr. Fasullo specifically asked petitioner if she had any questions and urged her to ask questions at any time during the proceedings. He also repeated the charges to insure that petitioner and Shevaleette understood them. The record indicates that petitioner made no objection to the hearing convening without having retained counsel; that petitioner and her daughter appeared and testified at the hearing; that the procedures for the hearing were repeatedly and sufficiently explained to petitioner; that petitioner was given the opportunity to cross-examine each witness; and that petitioner's later-retained counsel was provided with a written transcript of the hearing. Accordingly, I find petitioner’s due process arguments without merit.

Petitioner also claims that she was denied access to certain witnesses. Apparently, she only made her witness requests on the morning of hearing. Of the five witnesses requested, only one was available to testify. William Fields, a social work intern, was apparently in a college class at the time and unavailable. Of the four student witnesses petitioner requested, one was suspended, one was a former Brentwood student who did not present himself at the hearing, one was seen leaving school prior to the hearing and the fourth (Edwina Dahl) testified. The record reveals that Mr. Fasullo explained that it was petitioner’s responsibility, not the district’s, to present those witnesses. In addition, Superintendent Black’s letter also informed petitioner that it was her responsibility to procure the presence of any witnesses she deemed necessary. There is no evidence that respondent hindered or interfered with any of the witnesses’ appearances. Accordingly, I find petitioner’s claims without merit.

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). Since the hearing officer is in the best position to determine matters concerning witness credibility, the Commissioner will not substitute his judgment for that of the hearing officer unless the findings are not supported by facts in the record (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 127, Decision No. 14,192; Appeal of Pinckney, supra; Appeal of Bowen, supra; Appeal of Kittell, 31 id. 419, Decision No. 12,686).

In addition to Mr. Centeno, two teachers who witnessed the incident testified. Christopher Shea, a science teacher, testified that as he was leaving the high school, he saw a pair of students "in each others [sic] grip rolling off the back of the tan sedan immediately in front of me . . . They both rolled off and fell to the driver’s side of the car as it was moving forward about ten miles per hour." After notifying the front office that someone was hurt, he saw a group of about six to twelve students chasing and punching a man, who appeared to be the driver. Mr. Shea testified that he was fearful for his safety and that of the driver because a large crowd had set upon the driver. He also stated that he did not see the driver attempt to flee the scene of the accident, nor did he see Shevaleette do anything.

Mr. Pedneault, a technology teacher at the high school, testified that he encountered the scene after the injured student was already lying on the ground. He characterized the scene as threatening, chaotic and violent, and that he feared for his own safety as he tried to administer first aid to the injured student. He stated that he did not see the actual incident occur, but that he did recognize Shevaleette in the crowd. He also stated that he saw up to fifteen youths attack the driver.

Shevaleette testified that she only ran up to the car and knocked on the window to get Mr. Centeno to stop the car because he had hit her friend and it did not look as if he were going to stop. She states that she was angry but asserts that she did not abuse Mr. Centeno in any way and is not responsible for his injuries. The testimony of Shevaleette’s friend, Edwina Dahl, failed to shed any additional light on the situation.

There is no dispute that a girl was struck by Mr. Centeno’s car, that Shevaleette was there, that Mr. Centeno was injured and that the situation escalated out of control. Although accounts of the incident vary, upon the record before me, I find no basis to substitute my judgment for that of the hearing officer with respect to the credibility of Shevaleette, Ms. Dahl, Mr. Centeno and the teacher witnesses. Accordingly, I find that there is competent and substantial evidence that Shevaleette participated in the charged conduct.

The penalty imposed must be proportionate to the severity of the offenses involved (Appeal of Holt-Silvin, 39 Ed Dept Rep 319, Decision No. 14,249; Appeal of Alexander, 36 id. 160, Decision No. 13,689). 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 of education (Appeal of Holt-Silvin, supra; Appeal of Alexander, supra; Appeal of Forestiero, 34 id. 592, Decision No. 13,419). Upon the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in finding Shevaleette guilty of the offenses charged and imposing a penalty of exclusion from school. Shevaleette’s anecdotal record includes sixteen prior referrals, including one for which she was already on probation from an incident that had occurred only one month before.

Finally, petitioner alleges that the penalty imposed constitutes an impermissible transfer. A transfer is not an authorized penalty in student discipline cases under Education Law "3214 (Appeal of Reeves, 37 Ed Dept Rep 271, Decision no. 13,857). However, in this case, the penalty imposed was exclusion from school. Since Shevaleette was beyond the age of compulsory school attendance, she was not mandated to transfer to the evening high school, but rather was given the opportunity to continue her education there if she so chose. Accordingly, the penalty will not be set aside.

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

THE APPEAL IS DISMISSED.

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