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Decision No. 14,968

Appeal of Y.M., on behalf of M.R., from action of the Board of Education of the West Islip Union Free School District regarding student discipline.

 

Decision No. 14,968

 

(October 9, 2003)

 

Philip F. Alba, P.C., attorney for petitioner, Joseph C. Leshen, Esq., of counsel

 Guercio & Guercio, attorneys for respondent, Thomas M. Volz, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a determination of the Board of Education of the West Islip Union Free School District ("respondent") to permanently suspend her son, M.R.  The appeal must be sustained.

In September 2002, M.R. began his junior year in an alternative high school program at West Islip High School in respondent"s district.  By letter dated October 18, 2002, the high school principal notified petitioner that M.R. was suspended from the alternative program for five days "for endangering the health and safety of himself and others by smoking marijuana on school grounds on Thursday, October 17, 2002."  A superintendent"s hearing was held on October 22, 2002 at which M.R. admitted the conduct charged.  By letter of the same date, the superintendent notified petitioner that she found M.R. guilty of the charge and, upon review of his anecdotal record, expelled M.R. from attendance at the district"s public schools.

In November 2002, petitioner sent M.R. to live with his father in New Jersey where he completed his junior year of high school.  By letter dated May 20, 2003, petitioner appealed to respondent from the superintendent"s October 22, 2002 decision, indicating that M.R. was returning to live with her and she wished to re-enroll him in respondent"s high school.  By letter dated June 17, 2003, the board president notified petitioner that, after reviewing the record of the superintendent"s hearing, respondent upheld the decision to permanently suspend her son.

Petitioner commenced this appeal on July 17, 2003 challenging the permanent suspension of her son and seeking an order directing his immediate reinstatement to respondent"s high school.  On August 19, 2003, petitioner"s request for interim relief was granted.

Petitioner objects to the conduct of the superintendent"s hearing and also claims that the penalty of permanent suspension is too severe.  Respondent asserts that the appeal is untimely, that petitioner is guilty of laches and that the penalty is appropriate.

Respondent"s assertion that the appeal is untimely is without merit.  An appeal to the Commissioner pursuant to Education Law "310 must be instituted within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16).  Here, respondent denied petitioner"s appeal of her son"s suspension by letter dated June 17, 2003, and petitioner commenced this appeal on July 17, 2003 " within the 30-day period.  The appeal, therefore, is timely.

Respondent also asserts that the equitable doctrine of laches warrants dismissal of this appeal because petitioner did not seek review of the superintendent"s October 22, 2002 decision until May 20, 2003.  Laches may bar "the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party" (Skrodelis v. Norbergs, 272 AD2d 316).  "Prejudice may be established by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay" (id.).  Respondent asserts in a conclusory fashion that permitting this proceeding to go forward in the face of petitioner"s delay in appealing the superintendent"s October 22, 2002 decision to the board of education would "compromise the fundamentals of the alternative program, prejudicing the district in their efforts to address disciplinary problems."  However, respondent submits no proof in support of its conclusory statement.  Therefore, I find respondent has failed to establish sufficient prejudice to justify application of the laches doctrine (see, Appeal of Gehl, et al., 42 Ed Dept Rep ___, Decision No. 14,857).

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 (Bd. of Educ. of Monticello Central School District v. Commissioner, et al, 91 NY2d 133; Bd. of Educ. of City of New York v. Mills, et al, 293 AD2d 37).  In this case, M.R. admitted that he was under the influence of marijuana on school grounds.  Although petitioner claims that M.R. was never informed of the possible ramifications of admitting guilt and would not have made the admission had he realized that he could have been expelled, the petition contains no allegation that M.R. was not guilty of the conduct charged.  Based on M.R."s admission, the determination of guilt is beyond challenge (Appeal of Dale C., 40 Ed Dept Rep 70, Decision No. 14,423).

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of M.F. and J.F., 43 Ed Dept Rep ___, Decision No. 14,960).  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 M.F. and J.F., supra; Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723).  A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances, such as where the student exhibits "an alarming disregard for the safety of others" and where it is necessary to safeguard the well-being of other students (Appeal of Coleman, 41 Ed Dept Rep 101, Decision No. 14,628; Appeal of Dale C., supra; Appeal of McNamara, 37 Ed Dept Rep 326, Decision No. 13,871).  The circumstances in this case do not meet those criteria.

M.R. was found guilty of smoking marijuana on school grounds.  Although such conduct is not to be tolerated, it does not, of itself, evidence an alarming disregard for the safety of others.  Nor is there any indication that this extreme penalty is necessary to protect other students.

In support of the penalty imposed, however, respondent points to M.R."s anecdotal record over a period of two years and alleges that this most recent infraction, when considered with the past record, warrants expulsion.  M.R."s record reveals over 80 incidents of repeated lateness, smoking on school grounds, cutting classes, using foul language, leaving school grounds, insubordination and disruptive behavior.  Respondent notes particularly two prior incidents in which M. R. was disciplined in June 2002 for damaging another student"s property and in November 2001 for possessing a razor blade on school grounds.  Although I agree that a significant period of suspension is appropriate in view of M.R."s anecdotal record, the extraordinary penalty of permanent suspension is not warranted.

Respondent"s heavy reliance on the November 2001 razor blade incident in support of its argument that M.R. presents such an alarming disregard for the safety of others that permanent suspension is now justified is belied by the fact that the incident not only occurred almost two years ago, but that the district imposed only a five-day suspension.  Indeed, none of M.R."s prior suspensions exceeded five days.  If these prior incidents were not serious enough to warrant more severe penalties, they do not now create a basis, when viewed with the current incident, for a permanent suspension that will effectively end M.R."s chance to graduate from high school.  Thus, after carefully reviewing the record before me, I do not find M.R."s conduct extreme enough to warrant his permanent suspension from school.     

As noted above, on August 19, 2003, petitioner"s request for interim relief was granted ordering respondent to re-enroll M.R. in the district.  At that time, M.R. had been suspended from the district for eight months.  Such period of suspension should sufficiently impress upon M.R. the seriousness of his prior misconduct.   I encourage M.R. to profitably use this opportunity to return to school in respondent"s district to earn his high school diploma.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent admit M.R. to school in the West Islip Union Free School District; and

  IT IS FURTHER ORDERED that respondent remove any reference to a permanent suspension from M.R."s disciplinary record and adjust such record in accordance with the terms of this decision.

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