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Decision No. 14,703

Appeal of A.Q. from action of the Board of Education of the Briarcliff Manor Union Free School District regarding student discipline.

Decision No. 14,703

(March 27, 2002)

 

Gruberg, McKay & Stone, attorneys for petitioner, Paul D. Stone, Esq., of counsel

 

Raymond G. Kuntz, P.C., attorneys for respondent, Raymond G. Kuntz and Thomas Scapoli, Esqs., of counsel

 

MILLS, Commissioner.--Petitioner appeals his suspension by the Board of Education of the Briarcliff Manor Union Free School District ("respondent"). The appeal must be dismissed.

By letter dated May 4, 2001, Briarcliff High School Principal Dr. Robert Maher notified petitioner's parents that he was suspending petitioner, an eleventh grade student, for five days, from May 7 - May 11, 2001 "for giving or selling marijuana to an 8th grade student on or about April 28, 2001, who then brought the marijuana to school." By letter dated May 7, 2001, Superintendent Frances G. Wills informed petitioner's parents that a superintendent's hearing pursuant to Education Law "3214(3) was scheduled for May 11, 2001. Dr. Wills" letter charged petitioner with insubordination and/or endangering the safety or welfare of others in that "on or about May 4, 2001, [petitioner] was in possession of marijuana on school property, in violation of school policy."

At the May 11 hearing, Middle School Principal James Kaishian testified that on May 1 he received information that C.S., an 8th grade student, had marijuana and rolling papers in his possession and had shown them to other students. On May 4, Mr. Kaishian questioned C.S., who stated that he received the marijuana from petitioner and another high school student (J.H.). Mr. Kaishian then contacted Dr. Maher, who questioned petitioner. Dr. Maher testified that petitioner admitted that he had purchased $340 of marijuana and that an unnamed 8th grade student had come to his house to purchase some. Dr. Maher also stated that petitioner eventually admitted that while he had no marijuana on his person, he did have some in his car that was on school property. Dr. Maher testified that when he interviewed J.H., J.H. admitted arranging a purchase of the marijuana for $340 in order to sell it to petitioner. J.H. told Dr. Maher that the sale arrangement took place off school property. None of the three students testified.

By letter dated May 16, 2001, Superintendent Wills suspended petitioner for the remainder of the 2000-2001 school year, as well as the entire 2001-2002 school year. Petitioner appealed that determination to respondent, who affirmed the superintendent's determination by letter dated June 25, 2001. This appeal ensued. Petitioner's request for interim relief was denied on August 14, 2001.

Petitioner asserts that the suspension is tantamount to a permanent expulsion and is excessive. He contends that respondent's procedures violated his rights, that the record fails to support the superintendent's determination, and that the suspension is inconsistent not only with district policies but with the penalties accorded other students involved in this and similar incidents. He also asserts that Dr. Wills should not have held a consolidated hearing, the district improperly relied on hearsay testimony and Dr. Maher reneged on his promise to recommend leniency if he cooperated. He seeks a reduction of the penalty limiting his suspension to the balance of the 2000-2001 school year, or in the alternative, permission to participate in extracurricular activities during his senior year while attending an alternative program.

Respondent asserts that petitioner committed the charged conduct, received due process, and the penalty is appropriate to the charges. Respondent also asserts that the suspension was in essence only two months, since petitioner has been attending the Walkabout program (a public school program sponsored by BOCES), at district expense, since the beginning of the 2001-2002 school year.

I must first address a procedural matter. Petitioner, whose date of birth is June 9, 1984, brings this appeal on his own behalf. A person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law "310 (Appeal of Murphy, et al., 39 Ed Dept Rep 562, Decision No. 14,311; Appeal of Ground, 39 id. 404, Decision No. 14,272; Appeal of Reynolds, 37 id. 58, Decision No. 13,803). Accordingly, because petitioner is not 18 years of age, I am constrained to dismiss the appeal.

While the appeal must be dismissed on procedural grounds, I must also note that in her determination, Dr. Wills concluded that petitioner intended to sell marijuana on school property and based the assessed penalty in part on that conclusion. Petitioner, however, was not charged with selling marijuana at school. Clearly, the illegal use, possession or sale of drugs by students either on or off school grounds cannot be tolerated. However, the record in this matter does not fully support the hearing officer"s conclusion that petitioner was selling drugs on school grounds. Since the penalty is based in part on that fact and petitioner had no prior disciplinary record, I would urge respondent to reconsider the equity of its penalty in view of the charges and facts proven in the record.

In light of this disposition, I need not address the parties' remaining issues. However, I remind respondent to exercise great care in adhering to all procedural and substantive requirements in conducting future hearings pursuant to Education Law "3214.

THE APPEAL IS DISMISSED.

END OF FILE