MILLS, Commissioner.--Petitioner appeals the suspension of her son from the Massena Central School District ("respondent" or "district") for the remainder of the 1999-2000 school year. The appeal must be dismissed.

On January 25, 2000, petitioner's son was suspended for insubordination arising from an incident involving a hall monitor. Upon conclusion of a hearing held before respondent's superintendent of schools, on February 7, 2000, the superintendent suspended the student for the remainder of the 1999-2000 school year. Petitioner appealed the suspension to respondent board and a hearing was held on March 6, 2000. On March 10, 2000, the President of respondent board issued a Notice of Decision in which respondent found petitioner's son guilty of insubordination for failing to follow school rules, suspended the student for the remainder of the 1999-2000 school year, and provided for the continuation of a tutor for the student.

Petitioner commenced this appeal through service of a copy of the petition on the acting District Clerk on April 6, 2000. Petitioner's request for interim relief, pending a final determination in this appeal, was denied on May 11, 2000.

Petitioner contends that the penalty of suspension for the remainder of the school year is unreasonable and disproportionate to the offense. Petitioner also alleges that respondent's determination is based upon racial and personal prejudice against her son. Petitioner also alleges that respondent imposes discipline on students in an inconsistent manner.

Respondent denies petitioner's allegations and contends that petitioner's son was properly found to have been insubordinate and to have used obscenities in addressing school district staff; that the disciplinary measures imposed on the student were appropriate given present and past misconduct and consistent with the district's student disciplinary policies; and that the process and procedures attendant to both the superintendent's hearing and appeal to respondent board were substantially in compliance with the requirements of Education Law section 3214.

Petitioner contends in a conclusory manner that respondent's determination is based on racial and personal prejudice against her son. Petitioner alleges that an assistant principal told her son that he should go to the Salmon River Central School "with the rest of the Mohawks" and advised the student to quit school when he turned sixteen. Petitioner also alleges that the student's guidance counselor strongly suggested sending her son to an "Indian" school out of state.

Respondent denies petitioner's allegations and has submitted the affidavits of the assistant principal and the student's guidance counselor. The assistant principal denies petitioner's allegations, denies making the statements petitioner attributes to him, and states that petitioner specifically suggested that he be the individual designated to work with her son because of the positive manner he had demonstrated in their prior interaction. The student's guidance counselor states that during a meeting with the principal, petitioner and her son, in an effort to provide assistance with the student's academic and behavioral problems, she offered the name of agencies and individuals, including several out-of-state Native American schools that provide residential programs. The guidance counselor states that she had knowledge of two of these schools because she had former students who transferred to the schools to address similar concerns and met with success. Petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Wendy and Robert L., 39 Ed Dept Rep 224, Decision No. 14,222; Appeal of Logan, 38 id. 694, Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). On the record before me, I find that petitioner has failed to establish that the disciplinary action taken against her son was the result of racial or personal prejudice.

I also find that petitioner has failed to establish that respondent has inconsistently disciplined its students. In support of her contention, petitioner provides only one alleged instance involving the discipline of another student. Petitioner alleges in a general manner that an unnamed student, who threatened the life of a teacher and engaged in drug abuse, was suspended for a specific length of time and has since been reinstated. Respondent denies petitioner's allegations, and submits an affidavit of the high school principal in which she states that she does not know of the specific student or incident petitioner has referred to, as petitioner did not name the student; that any student who had threatened a teacher's life would have received a long term suspension from the superintendent; that any student who received a long-term suspension has had the opportunity to "earn" re-entry to school provided the student completed the conditions for re-entry; that the student would appeal to her as principal for re-entry; and that the principal would discuss with the superintendent the appeal and evidence whether the conditions for re-entry were met, before making her decision. On the record before me, I do not find that respondent has acted inconsistently in disciplining its students.

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 J.D., 39 Ed Dept Rep , Decision No. 14,322; Appeal of R.S., 38 id. 419, Decision No. 14,065; Appeal of Pinckney, 37 id. 284, Decision No. 13,860. 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). 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 on the record (Appeal of Pinckney, supra; Appeal of Bowen, 35 id. 136, Decision No. 13,491; Appeal of Kittell, 31 id. 419, Decision No. 12,686).

The record indicates that on January 25, 2000, a confrontation occurred between petitioner's son and a hall monitor, involving the student's attempt to go to his locker to retrieve his coat. Petitioner concedes that when the monitor told her son that the monitor was "writing him up", he replied with an obscenity and walked away. At the superintendent's hearing, petitioner's son admitted that he told the monitor 'to go ahead and send me to the office – I was sick of this f---ing bull----'. On the record before me, I find that the student's behavior was sufficient to support a finding of insubordination by the superintendent.

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 Jeffrey and Tammy M., 39 Ed Dept Rep , Decision No., 14,364; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899; Appeal of Bowen, supra). Furthermore, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Tammy and Jeffrey M., supra; Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689; Appeal of Durkee, 20 id. 94, Decision No. 10,329); 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 Joseph F., 39 Ed Dept Rep 242, Decision No. 14,226; Appeal of B.B., 38 id. 666, Decision No. 14,113; (Appeal of Alexander, supra).

The record indicates that during the period from September 8, 1999 through February 7, 2000, petitioner has engaged in conduct which resulted in nineteen disciplinary referrals. In addition to four instances of tardiness and one instance of truancy, the student's conduct also included four instances of class disruption, one instance of harassment, four instances of insubordination, two instances of bus disruption, two instances of obscene language/gesture, and one instance of "horseplay". The record also indicates that respondent has tried various methods of disciplining the student, including time-out to study hall, detention, in-school suspension and out-of-school suspension.

Upon the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in finding petitioner guilty of insubordination and imposing a penalty of suspension from school for the remainder of the school year.

THE APPEAL IS DISMISSED.

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