Appeal of L.T., on behalf of R.T., from action of the Board of Education of the East Islip Union Free School District regarding student discipline.

 

Decision No. 15,107

 

(August 31, 2004)

 

Ingerman Smith, L.L.P., attorneys for respondent, Deborah Richardson de Cuevas, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the suspension of her son, R.T., by the Board of Education of the East Islip Union Free School District (�respondent�).  The appeal is sustained.

In September 2003, R.T. commenced his junior year at respondent�s East Islip High School.  On October 30, 2003, R.T. was suspended for five days for being under the influence of alcohol on school premises, insubordination, threatening a teacher, leaving school grounds without permission and using foul language.  On November 7, 2003, a hearing officer conducted a superintendent�s hearing pursuant to Education Law �3214 on these charges:

That on October 30, 2003, [R.T.] was under the influence of alcohol while on the premises of East Islip Union Free School District.

That on October 30, 2003, [R.T.], after having been directed to remain in the nurse�s office of the East Islip High School, left the nurse�s office and the premises of the East Islip High School.

Charge #3

That on October 30, 2003, [R.T.], while on the premises of the East Islip High School, threatened another by stating, �That b---- is dead.�

Charge #4

That on October 30, 2003, [R.T.], while leaving the premises of the East Islip High School without authorization, stated to staff members, �F--- you guys.�

The hearing officer found R.T. guilty of all four charges and, upon review of his anecdotal record, recommended that R.T. be permanently suspended from the district�s schools.  The hearing officer also determined that, because of his age, R.T. was not entitled to alternative instruction. The superintendent of schools adopted the hearing officer�s recommendations.

By letter dated November 20, 2003, petitioner appealed the superintendent�s decision and also requested alternative instruction for R.T.  By letter dated December 3, 2003, the superintendent notified petitioner of her right to submit written information for respondent�s consideration on appeal. Thereafter, R.T. was provided alternative instruction.

Petitioner submitted two letters to respondent, dated January 2 and January 6, 2004.  In her letters, she stated that she was not represented by counsel at the superintendent�s hearing and that she never received a written decision from the superintendent.  She challenged the determination of R.T.�s guilt and the penalty imposed.

By letter dated January 8, 2004, respondent notified petitioner that, at its meeting of January 6, 2004, it upheld the superintendent�s decision.  This appeal ensued.  On April 13, 2004, petitioner�s request for interim relief was denied.

Petitioner asserts that she was not adequately prepared for the November 7, 2003 superintendent�s hearing.  She also asserts that respondent had pre-determined her appeal prior to its January 6, 2004 meeting.  Finally, petitioner seeks an order returning R.T. to school.  Respondent maintains that its determination was, in all respects, proper and that the penalty is appropriate.

As a threshold matter, respondent seeks permission to submit a late answer and additional affidavit pursuant to �276.5 of the Commissioner�s regulations.  Most of respondent�s defenses and exhibits were previously submitted in a timely manner in opposition to petitioner�s stay request.  Upon review of respondent�s application, and noting no objection by petitioner, I have accepted respondent�s answer and additional affidavit for consideration.

In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of Crump, 44 Ed Dept Rep ___, Decision No. 15,099; Appeal of B.H. and B.H., 43 id. ___, Decision No. 14,919).  Section 3214(3)(c)(l) provides, in pertinent part:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf.

Although petitioner contends that she was not prepared for the November 7, 2003 disciplinary hearing, she does not assert that she was not provided notice of R.T.�s right to representation by counsel or to present and cross-examine witnesses.  Nor does she allege that she had insufficient time to obtain counsel prior to the hearing.  At the hearing, the hearing officer reviewed R.T.�s rights under Education Law �3214(3)(c)(1) and specifically asked petitioner and R.T. if they had any questions.  Neither petitioner nor R.T. requested an adjournment to obtain counsel or otherwise indicated that they did not understand their rights under Education Law �3214.

     Petitioner claims that at its January 6, 2004 meeting, respondent acted too hastily in upholding the superintendent�s decision and, therefore, she believes respondent had made its decision prior to hearing her appeal.  Petitioner�s claim consists solely of conclusory allegations.  She presents no evidence that respondent acted with bias or otherwise improperly prejudged the merits of her appeal.

     Finally, petitioner seeks R.T.�s reinstatement. 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 Cent. School Dist. v. Commissioner of Educ., 91 NY2d 133; Bd. of Educ. of City of New York v. Mills, et al., 293 AD2d 37).  Petitioner admits that on October 30, 2003, R.T. was under the influence of alcohol.  At the November 7, 2003 superintendent�s hearing, the high school principal provided direct testimony that he observed R.T. under the influence of alcohol (Charge 1), that R.T. ignored his directive and left the nurse�s office without permission (Charge 2), and that he saw R.T. leave school premises without authorization and heard him direct foul language to security staff (Charge 4).  The principal also testified that he had received reports from staff that R.T. made a threatening statement against a teacher (Charge 3).

     In addition to the principal, respondent also presented a teacher, N.K., who testified that she heard R.T. threaten another teacher [Mrs. P.] (Charge 3).  Petitioner challenges the characterization of the statement made by R.T.  She claims R.T. did not threaten Mrs. P. but instead referred to her in vulgar terms.  Petitioner asserts that Mrs. P. told her that she did not feel threatened by R.T.  However, petitioner did not call Mrs. P. as a witness at the hearing.  In view of the eyewitness testimony respondent presented at the hearing, I find that the determination of guilt is supported by competent and substantial evidence.

     In cases of student discipline, however, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Y.M., 43 Ed Dept Rep ___, Decision No. 14,968; Appeal of M.F. and J.F., 43 id. ___, 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 Y.M., supra; 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 Y.M., supra; Appeal of Coleman, 41 Ed Dept Rep 101, Decision No. 14,628; Appeal of McNamara, 37 Ed Dept Rep 326, Decision No. 13,871).  The record in this case is somewhat unclear as to whether R.T.�s suspension was �permanent� or through June 30, 2005, which would have been the end of R.T.�s senior year.  The circumstances of this case, however, do not merit either penalty.

     R.T. was found guilty of intoxication, insubordination, using foul language and making a verbal threat.  While a verbal threat must be taken seriously, R.T. has no history of violent or threatening behavior. 

In support of its penalty, respondent points to R.T.�s anecdotal record over a period of approximately one and one-half years and alleges that the current charges, when considered with his past record, warrant R.T.�s expulsion.  R.T.�s record reveals 25 incidents of: using foul language, leaving school grounds, failing to follow directions and engaging in disrespectful and/or disruptive behavior. A prior five-day suspension of R.T. for possession of �a weapon� stemmed from his waving around a stage prop theatrical sword. Although I agree that a significant period of suspension is appropriate in view of R.T.�s anecdotal record and the current charges, the extraordinary penalty of expulsion, or even suspension through June 30, 2005, is not warranted. Indeed, none of R.T.�s prior suspensions exceeded five days � thirteen of them were in-school suspensions.  Even the incident with the stage prop sword resulted in only a five-day suspension.  These prior incidents do not now create a basis, when viewed with the current incident, for either a permanent suspension or suspension through June 30, 2005, that may effectively end R.T.�s chance to graduate from high school.  Thus, after carefully reviewing the record before me, I do not find R.T.�s conduct extreme enough to warrant the penalty imposed.

     R.T. has already been suspended from school from October 30, 2003 through June 30, 2004 � a period of eight months.  Such period should sufficiently impress upon R.T. the seriousness of his prior misconduct.  I encourage R.T. 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 R.T. to school in the East Islip Union Free School District; and

 

IT IS FURTHER ORDERED that respondent remove any reference to a permanent suspension or suspension through June 30, 2005 from R.T.�s disciplinary record and adjust such record in accordance with the terms of this decision.

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