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Decision No. 14,699

Appeal of K.M., on behalf of P.M., from action of the Board of Education of the Hyde Park Central School District regarding student suspension.

Decision No. 14,699

(March 19, 2002)

 

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

 

Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, Daniel Petigrow, 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 in part.

The facts in this appeal are set forth in Appeal of Muldoon, 41 Ed Dept Rep __, Decision No. 14592, and will not be repeated here. In that decision, I annulled the action of respondent in suspending petitioner's son, and remanded the matter to respondent for a determination based upon the record of the hearing held pursuant to Education Law "3214.

Respondent considered the full hearing record at its August 23, 2001 meeting. By letter dated August 24, 2001, respondent's superintendent informed petitioner that respondent had sustained the superintendent"s December 22, 2000 determination, which accepted the hearing officer's findings and recommendations which concluded that petitioner's son was guilty of the charges and recommending his suspension from school until the conclusion of the Christmas recess in January 2002. Respondent also invited petitioner to submit information relating to whether her son should be permitted to return to school prior to the end of the suspension period. By letter dated September 17, 2001, the superintendent advised petitioner that respondent considered petitioner's materials at its September 13, 2001 meeting and decided not to reduce the penalty originally imposed.

Petitioner's son was not permitted to return to school on September 6, 2001, the first day of student attendance for the 2001-2002 school year. Commencing on September 19, 2001, petitioner was provided with tutoring at the Violet Avenue Elementary School, for two hours per day, ten hours per week in a small group setting.

Petitioner commenced this appeal on September 22, 2001 through service of a copy of the petition upon the district clerk. On October 12, 2001, petitioner's request for interim relief was denied.

Petitioner requests a determination that her son's suspension was improper and unlawful and requests that the finding that her son displayed "razor blades" and threatened two students be expunged from his school record. Petitioner also requests a determination that the period of suspension was arbitrary, excessive, unfair and inappropriate and that I determine a proper period of suspension, if any. Petitioner also challenges the alternative education provided to her son. Petitioner alleges that respondent failed to provide her son with any alternative education for the first two weeks of the 2001-2002 school year. Petitioner also alleges that her son has been placed in an improperly constituted "special day school" in violation of Education Law "3214(2) or, in the alternative, that her son has been involuntarily transferred without procedural due process in violation of Education Law "3214(5).

Respondent denies petitioner's allegations and contends that there is competent and substantial evidence in the record that petitioner's son participated in the objectionable conduct and that the penalty imposed is not excessive. Respondent also contends that petitioner's claims relating to change of venue, timing and the format of alternative instruction provided by respondent as of April 17, 2000 are barred as untimely. Respondent further contends that petitioner is barred from asserting these claims because she failed to exhaust administrative remedies. In addition, respondent denies petitioner's allegations that respondent violated Education Law ""3214(2) and 3214(5) in providing alternative instruction to petitioner's son.

Except to the extent that petitioner seeks expungement of her son's records, this appeal must be dismissed as moot. The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of N.B., 40 Ed Dept Rep ____, Decision No. 14,542; Appeal of N.C., 40 id. ___, Decision No. 14,522). Petitioner requests a determination that her son's suspension was "improper and unlawful." However, the record indicates that petitioner's son was suspended until the conclusion of the holiday recess in January 2002 and there is nothing in the record to indicate that her son was not permitted to return to his regular classes after the end of this suspension period. Therefore, to the extent that petitioner seeks to challenge the discipline imposed by respondent, the appeal must be dismissed as moot (Appeal of Camille S., 39 Ed Dept Rep 574, Decision No. 14,316). For the same reason, the appeal is also moot to the extent that petitioner requests relief on her claims that respondent violated Education Law "3214 by suspending her son for more than five days without holding a hearing and that respondent failed to provide her son with an adequate alternative education during the suspension period (Appeal of Harlan, 40 Ed Dept Rep ____, Decision No. 14,488; Appeal of Camille S., supra). Similarly, petitioner's claims that her son was placed in an improperly constituted "special day school" in violation of Education Law "3214(2) or, in the alternative, that her son was involuntarily transferred without procedural due process in violation of Education Law "3214(5), must also be dismissed as moot. There is nothing in the record to indicate that her son was not permitted to return to his regular class placement at the conclusion of the suspension period in January 2002.

However, I must consider the merits of petitioner's appeal to the extent that she seeks expungement of material from her son's records, relating to the disciplinary action taken against him. If the underlying disciplinary action is improper, the continuing inclusion of material relating to such action in the student's records would not be rendered moot as a result of the student's return to his regular classes after completion of the period of suspension.

Petitioner's son was suspended on December 8, 2000 for a period of five school days pending a hearing. Such suspension is authorized pursuant to Education Law "3214(3)(a) and (b) and there is nothing in the record to establish that such five-day suspension was improper. By letter dated December 14, 2000, respondent's superintendent confirmed a phone conversation on that date with petitioner advising her that the district had rescheduled her son"s disciplinary hearing for December 18, 2000. Respondent asserts that the rescheduling was necessary because December 14, 2000 was declared a snow day, and that petitioner made no attempt at that time to return her son to his regularly scheduled classes. Petitioner has not responded to respondent's assertions. Since the burden of proof is on petitioner to establish the facts with which she seeks relief (8 NYCRR "275.10; Appeal of K.W., 40 Ed Dept Rep 66, Decision No. 14,422), and it appears from the record that petitioner may have consented to the rescheduling of the hearing, I do not find the student's suspension beyond December 14, 2000 until December 18, 2000 to be improper.

In my previous decision concerning the student's suspension, Appeal of Muldoon, supra, I annulled respondent"s suspension of petitioner's son, and remanded the matter to respondent for a determination based upon the record of the hearing held pursuant to Education Law "3214. My previous decision did not address petitioner's request for expungement because such request was premature at that time since it was possible that respondent, upon remand, could have ordered the expungement. It was therefore necessary to await respondent's determination upon remand. However, in view of respondent's determination upon remand to sustain the superintendent's determination, I must now sustain petitioner's appeal to the extent that it seeks expungement of the records relating to the discipline imposed upon her son from December 18, 2000, the date of the disciplinary hearing, through August 23, 2001, the day before respondent's August 24, 2001 determination upon remand. As noted in my decision, such discipline was improperly imposed in violation of Education Law "3214(3) because respondent's determination was not based upon its review of the record of the disciplinary hearing. Consequently, any records relating to such discipline must be expunged.

I will now address petitioner's claims to determine whether records relating to the discipline imposed on petitioner's son from August 24, 2002 until the conclusion of the Christmas recess in January 2002 should be expunged. Petitioner contends that her son was denied due process in that the charges and specifications did not adequately and appropriately apprise him of the matters to be considered at the hearing. Petitioner's son was charged with being "insubordinate or disorderly, and/or his conduct otherwise endangered the health, safety and welfare of himself and/or others." This charge was supported by two specifications:

  1. On December 8, 2000, at approximately 7:35 to 8:00 a.m., [P.M.] was in possession of weapons, specifically razor blades, while on the school bus during the morning run.
  2. On December 8, 2000, at approximately 8:30 a.m., [P.M.] was in possession of weapons, specifically razor blades, while on school property.

In addition, in his letter dated December 15, 2000, the superintendent charged petitioner's son with being "insubordinate or disorderly, and/or his conduct otherwise endangered the health, safety and welfare of himself and/or others." This charge is supported by a single specification:

  1. On December 8, 2000, while on his a.m. bus run, [P.M.] allegedly threatened two students after allegedly displaying a razor blade. [P.M.] allegedly stated, "If you tell anyone, I will slit your throat."

What constitutes "reasonable notice" of the charges will vary with the circumstances of each case (Bd. of Educ., Monticello CSD v. Commissioner of Education, et al., 91 NY2d 133). The charges need only be sufficiently specific to advise the student and the student's counsel 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., Monticello CSD v. Commissioner of Education, et al., supra).

Upon my examination of the record, I find that petitioner's son was provided sufficiently specific notice to enable the student to prepare and present an adequate defense (Application of R.S., 38 Ed Dept Rep 419, Decision No. 14,065). With respect to the first charge and two specifications relating to possessing "razor blades" on the school bus and on school property, petitioner's son admitted and stipulated at the hearing that on December 8, 2000 on the morning school bus run he possessed an item subsequently marked and admitted into evidence as school Exhibit 1; and that on that same date, he brought the item into the Haviland Middle School, where it remained inside a plastic box containing baseball cards, which was in his school locker. Although, petitioner disputes whether the item was in fact a razor blade, the description of the item in the record is consistent with a razor blade, and the hearing officer's determination that the item was, in fact, a razor blade is supported by the record. Furthermore, while it appears from the record that only a single razor blade was involved, petitioner has failed to establish how use of the plural "razor blades" in the specifications prevented her son from being adequately and appropriately apprised of the matters to be considered at the hearing. The hearing officer found that petitioner's son was in possession of "a razor blade" on the school bus and on school property. Possession of a single razor blade under such circumstances is sufficient to sustain the charge and specifications.

With respect to the second charge and specification, relating to petitioner's son, while on his morning bus run, threatening two students after displaying a razor blade, I find the charge is sufficiently described to provide reasonable notice of the alleged conduct underlying the charge, i.e. that the student threatened at least one other student with harm involving the use of a razor blade. Furthermore, I agree with the hearing officer's determination that notice of the charge is not rendered defective as a result of identifying the place where the misconduct occurred as the school bus rather than at the school. As noted by the hearing officer, there was "a course of action that began on the school bus with the display of the razor blade and continued after the students entered the school."

Petitioner further contends that respondent's failure to name the student or students who were threatened denied her son due process by preventing him from effectively preparing his defense to the charge and specifications. However, petitioner has failed to cite any specific statutory authority to establish a right to this information. Furthermore, the record indicates that petitioner's son was able, through his counsel, to present a witness to testify in support of petitioner's son and to provide adequate cross examination of the district's witnesses. In the absence of any express statutory mandate, the preparation of a list of prospective witnesses is not an indispensable element of due process of law within the context of an administrative proceeding pursuant to Education Law "3214(3) (Application of R.S., supra; Appeal of Spink, 25 Ed Dept Rep 129, Decision No. 11,520; Matter of Seward, 12 id. 100, Decision No. 8551). Accordingly, I find petitioner's contention to be 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; a hearing officer may draw reasonable inferences if the record supports the inference (Bd. of Educ., Monticello CSD v. Commissioner of Education, et al., supra; Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241; Appeal of Uebel, 38 id. 375, Decision No. 14,058). With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of Oliver, 39 Ed Dept Rep 817, Decision No. 14,392; Appeal of Reeves, 37 id. 271, Decision No. 13,857; Appeal of Hamet, 36 id. 174, Decision No. 13,692).

As noted above, petitioner's son admitted and stipulated at the hearing that on December 8, 2000 on the morning school bus run he possessed school Exhibit 1, which was determined by the hearing officer to be a razor blade, and that on that same date, he brought the item into the Haviland Middle School, where it remained inside a plastic box containing baseball cards, which was in his school locker. The assistant principal at the Haviland Middle School testified that after a report was received on the morning of December 8, 2000, concerning razor blades in the locker of petitioner's son, he searched the locker and discovered a razor blade in a plastic container containing baseball cards, that was found in the student's backpack.

R.G., a student at Haviland Middle School, testified that on December 8, 2000, he and petitioner's son sat together towards the back of the school bus and behind the bus driver. While riding on the bus, he observed a razor blade in the bottom of a deck of baseball cards that petitioner's son was holding. R.G. further testified that he saw another student, J.S., sitting four or five seats in front of where he and petitioner's son were sitting, and that neither J.S. nor petitioner's son got up from their seats or talked to each other.

J.S. testified that on December 8, 2000 she was sitting in the middle of the bus in the seat right in front of petitioner's son and R.G. At that time she saw petitioner's son display a razor blade on the school bus and state that he was going to use it to slit another student's (B.D.) throat. She further testified that after the school bus arrived at school he stated to her that if she told anybody, he would "slit my throat along with B.D."

I note that since the testimony of R.G. and J.S. is inconsistent in certain areas, the hearing officer's determination rests on his assessment of the witnesses' credibility. The hearing officer states the following in his decision:

Realizing that this case could rest on the credibility of witnesses, I attempted to concentrate on the demeanor of the witnesses in order to ascertain their veracity. I did not note a lack of eye contact on the part of J.S. Instead, I noted a relative calm demeanor. I also noted that most questions were answered in a direct and concise way. On cross-examination, J.S. admitted to having "dated" [petitioner's son] and admitted that she was turned around in her seat on the bus, contrary to applicable rules regarding bus safety. While neither of these admissions is especially damning, her admissions do not suggest a calculating witness bent on avoiding the truth. In my view nervous laughter by a young girl testifying in a strange environment is not a sign of lack of veracity. I find nothing in the conduct of J.S. while testifying that would lead me to discredit her testimony.

The hearing officer further found that a voluntary statement written and signed by J.S. and entered into evidence differs in substance from her testimony only in regards to how many students were threatened by petitioner's son; that it is not clear whether J.S. informed the school secretary that another student, A.V., had been threatened or whether that information was provided by A.V.; that J.S.'s voluntary statement as a whole is not significantly different from her testimony at the hearing; and that he does not find the inconsistency regarding any threat to A.V. to be sufficient to impeach the testimony of J.S.

The hearing officer also states in his decision:

I must also consider the testimony of R.G., which is at odds with that of J.S. R.G. was able to testify to the fact that J.S. and another student were sitting four or five rows ahead of him, but could not remember whether any students were sitting in the seat directly in front of him. His recall of some details and his failure to recall others raises some concerns regarding the value of the testimony. R.G. testified that he and [petitioner's son] were on the football team together and are friends.

Taking all the circumstances in account, the inconsistencies in the testimony, the relationships among the witnesses and [petitioner's son], my observations or [sic] the witnesses while testifying, I have credited the testimony of J.S.

On the record before me, I find no reason to substitute my judgment for that of the hearing officer as to the credibility of the witnesses. Petitioner has presented no clear and convincing evidence that the hearing officer's determination of credibility is inconsistent with the facts, and I find that the hearing officer"s findings are reasonable and constitute sufficient and competent evidence that petitioner's son participated in the conduct charged. Consequently, there is no basis for me to overrule such determination and findings for purposes of expungement of the student's records.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved; 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). Although petitioner generally alleges that the penalty imposed was inconsistent with that imposed on other students for similar acts, petitioner provides only one specific example where she alleges that a student brought razor blades into school and was suspended for four months, which suspension was allegedly reduced to two months. Respondent denies knowledge of such incident or others where students allegedly were treated differently. In any event, I note that, unlike the circumstances presented in petitioner's appeal, the single example provided by petitioner does not involve conduct that included a threat to use a razor blade to inflict harm on another student.

I do not find that respondent's suspension of petitioner's son to the conclusion of the holiday recess in January 2002 is excessive. Petitioner's son was found to have possessed a sharp metal object determined to be a razor blade and threatened to use the object against at least one student. In Appeal of John T., 30 Ed Dept Rep 1, Decision No. 12,370, Commissioner Sobol, noting that possession of weapons in school cannot be tolerated, upheld a one-year suspension of a student for possessing a box-cutter on school grounds. In the present appeal, the student's actions went beyond simple possession of the razor blade to include the threatened use of such object. Under such circumstances, I do not find the suspension imposed on petitioner's son to be excessive.

Finally, I admonish respondent regarding its failure to provide adequate alternative instruction to petitioner's son at the beginning of the 2001-2002 school year. Respondent admits that petitioner's son was not provided with alternative instruction from September 6, 2001 until September 19, 2001. Respondent asserts that its superintendent of schools is prepared to offer 18 hours of make-up alternative instruction or any other configuration of make-up services suggested by petitioner for the period of time that no alternative instruction was provided. Nevertheless, it is imperative that respondent be mindful of its legal obligation under Education Law ""3205(1) and 3214(3)(e) to provide prompt alternative education in the future (Appeal of D.H., 41 Ed Dept Rep __, Decision No. 14,640).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the school records of petitioner's son any reference relating to his suspension from December 18, 2000 through August 23, 2001.

END OF FILE