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Decision No. 14,642

Appeal of C.D., on behalf of M.B., from action of the Board of Education of the Livingston Manor Central School District regarding student discipline.

Decision No. 14,642

(September 5, 2001)

Hogan & Sarzynski, LLP, attorneys for respondent, Wendy K. DeWind, Esq., of counsel

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

Petitioner"s son, M.B., was a seventeen-year-old student in respondent"s high school at the time of the events leading to this appeal. On March 12, 2001, a teacher discovered a sharpened ruler, resembling a knife and emblazoned with the word "killer," on M.B."s desk. In response to that teacher"s questioning, and to questioning by the building"s principal the following day, M.B. admitted to possessing the sharpened ruler, but stated that he obtained the ruler from another student.

By letter dated March 13, 2001, respondent"s principal advised petitioner that he was suspending M.B. for five days for violating the school rule prohibiting the possession of a weapon on school grounds. By letter dated March 14, 2001, respondent"s superintendent notified petitioner that, in accordance with Education Law "3214, a hearing had been scheduled for March 19, 2001 to consider the suspension of her son for more than five days as a result of his possession of a weapon on school grounds. The superintendent"s letter informed petitioner of M.B."s rights, including the right to cross-examine respondent"s witnesses, to present witnesses or other evidence on her son"s behalf and to be represented by counsel at the hearing.

By letter dated March 22, 2001, the superintendent notified petitioner of his decision finding M.B. guilty of the charges. The superintendent also notified petitioner of his decision to suspend M.B. for the remainder of the 2000-2001 school year and for the first semester of the 2001-2002 school year -- for a total of 33 weeks. The letter, however, also advised petitioner that M.B. would be permitted back to school on a probationary basis, as early as March 26, 2001, provided he agreed to sign a "contract of conduct." Respondent"s contract of conduct is essentially an agreement between a student and the superintendent whereby the student promises to abide by all school rules and, in exchange, the superintendent stays the remaining suspension against the student, as long as that student does not violate any other school rules. M.B. has refused to sign the contract of conduct.

Petitioner appealed the superintendent"s decision to respondent at its April 24, 2001 meeting. By notice dated April 25, 2001, petitioner was advised that respondent had unanimously adopted the superintendent"s findings of fact as well as his assessment of punishment. This appeal ensued.

Petitioner seeks a determination that M.B. did not possess a weapon and should not have been suspended. Respondent asserts that this appeal is time-barred; that M.B. could return to school at any time, provided he signs the contract of conduct; and that its decision to suspend M.B. for an extended period of time is supported by the facts and the law.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days of the action or decision complained of, unless excused for good cause shown (8 NYCRR "275.16). Here, respondent made its final decision regarding M.B."s suspension on April 24, 2001, and petitioner was apprised of such decision by notice dated April 25, 2001. This appeal was not commenced until June 12, 2001, considerably more than 30 days after petitioner was notified of respondent"s final decision, and without any explanation for the delay. Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits, since I find substantial evidence in the record to support both the superintendent"s findings of fact and the penalty imposed. 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 (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133; Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241; Appeal of Uebel, 38 id. 375, Decision No. 14,058). A hearing officer may draw reasonable inferences if the record supports the inference (Board of Education of Monticello Central School District v. Commissioner of Education, supra; Appeal of Aldith L., supra; Appeal of Uebel, supra). In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Aldith L., supra; Appeal of Uebel, supra). 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 (Appeal of Aldith L., supra; Appeal of Uebel, supra).

Petitioner seeks a determination that M.B. "did not possess a weapon." However, in her verified petition, she stated that "[t]he ruler was handed to [M.B.] by another student"; and that "[M.B.] looked at the ruler and set it down on his desk" " in other words, petitioner admits that M.B. was in possession of the weapon. Further, in his affidavit, respondent"s superintendent avers that M.B. admitted to both the teacher who discovered the ruler and to the school principal that he was, in fact, in possession of the sharpened ruler. A penalty of 33 weeks" suspension is indeed severe. However, in light of the seriousness of the offense, i.e. the possession of a "home made" knife which could have been used to inflict bodily injury, I will not substitute my judgment for respondent"s. Furthermore, by simply signing respondent"s contract of conduct " by which M.B. would simply agree to follow the rules of the school " he could immediately terminate the balance of his suspension and return to school.

THE APPEAL IS DISMISSED.

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