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Decision No. 14,592

Appeal of KATHLEEN MULDOON, on behalf of PATRICK MULDOON, from action of the Board of Education of the Hyde Park Central School District relating to student suspension.

Decision No. 14,592

(July 9, 2001)

Steiman & Sammarco, Esqs., attorneys for petitioner, Mickey A. Steiman, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, John M. Donoghue, Esq., of counsel

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

On December 8, 2000, petitioner's son was suspended by respondent's middle school principal for five days pending a hearing pursuant to Education Law "3214. By letter dated that same day, petitioner was informed that her son was suspended for "possession of razor blades on the bus." By letter dated December 11, 2000, petitioner was informed that her son was charged with possession of razor blades on December 8, 2000 "while on the school bus during the morning run" and also "while on school property." The letter informed petitioner that a superintendent's hearing was scheduled for December 14, 2000, to review these charges. Thereafter, petitioner was notified that the hearing had been rescheduled for December 18, 2000.

By letter dated December 15, 2000, respondent's superintendent advised petitioner of a third charge against her son. The charge alleged that, while on the morning bus run, petitioner's son "threatened two students after allegedly displaying a razor blade." A hearing was held on December 18, 2000. In a decision dated December 21, 2000, the hearing officer issued a decision finding petitioner's son guilty of the charges and recommending his suspension from school for one year - until January 2002. By letter dated December 22, 2000, respondent's superintendent notified petitioner that he had accepted the hearing officer's findings and recommendation. Pursuant to Education Law "3214(3), petitioner appealed her son's suspension to respondent. Respondent upheld the suspension, and this appeal ensued.

Petitioner contends that her son's rights were violated in several respects. She alleges that the charges and specifications of the charges did not adequately or appropriately apprise her or her son of the matters to be considered at the superintendent's hearing. She also asserts that, in determining her appeal, respondent improperly failed to consider the record of the superintendent's hearing. Petitioner also challenges certain findings of guilt on the charges and the penalty imposed. Respondent contends that it complied with all applicable disciplinary procedures and that its suspension of petitioner's son for one year was in all respects proper.

Although petitioner raises several procedural and substantive objections to the discipline imposed on her son, it is not necessary to address them at this time, and indeed I cannot do so without the transcript before the hearing officer, which neither party has submitted. The procedure followed by respondent in hearing petitioner's appeal is, at this juncture, dispositive. According to petitioner, respondent did not review the record of the hearing, but only heard from petitioner, her son and counsel during executive session. Respondent additionally considered statements from its superintendent and the hearing officer. Respondent does not deny petitioner's allegations nor does the record establish that it reviewed the record of the superintendent's hearing.

With regard to hearings on student suspensions, Education Law "3214(3) provides in pertinent part:

A record of the hearing shall be maintained " The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent. The report of the hearing officer shall be advisory only, and the superintendent may accept all or any part thereof. An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it. [emphasis supplied]

Where a hearing has been held, the board of education may not properly decide an appeal from a decision suspending a student unless it reviews the entire record of the hearing (Appeal of Spink, 25 Ed Dept Rep 129, Decision No. 11,520; Appeal of Ehrhart, 18 id. 339, Decision No. 9869). Respondent must, therefore, review the hearing transcript and determine petitioner's appeal, subject to petitioner's right to appeal from such determination should she feel aggrieved by it.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the action of respondent board of education in suspending petitioner's son be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that this matter be remanded to respondent for a determination based upon the record of the hearing held pursuant to Education Law "3214 and that petitioner's son be readmitted to regular classes pending such determination.

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