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Decision No. 15,115

Appeal of J.J., on behalf of P.S., from action of the Board of Education of the Cobleskill-Richmondville Central School District regarding student discipline.

 

Appeal of J.J., on behalf of M.S., from action of the Board of Education of the Cobleskill-Richmondville Central School District regarding student discipline.

 

 

(September 22, 2004)

 

 

Michael West, Esq., attorney for respondent

 

 

MILLS, Commissioner.--In separate appeals, petitioner challenges respondent's suspension of her children, P.S. and M.S., for the remainder of the 2003-2004 school year.  Because the appeals raise common issues of law and fact, they are consolidated for decision.  The appeals must be dismissed.

On September 9, 2003, P.S. and M.S. were involved in an altercation on school premises with another student, J.S., who allegedly uttered racist slurs at them.  As a result, P.S. punched J.S. on the side of the face and M.S. threw a book at J.S., which missed him and struck a teacher's aide instead.  M.S. and P.S. were suspended on that date, pending a superintendent's hearing. 

M.S. and P.S. were charged with being insubordinate, disorderly and violent and endangering the safety, morals, health and welfare of himself/herself and others.  A joint hearing was held on September 17 and September 26, 2003.  The hearing officer issued his findings of fact and recommendation on October 8, 2003, concluding that M.S. and P.S. each committed the offense charged and recommending that they be suspended for the remainder of the school year. 

Respondent's superintendent issued a decision dated October 14, 2003, which modified the hearing officer's recommended penalty to the extent that the students would be allowed to petition the school district to return sooner.  Petitioner subsequently appealed to respondent.  At its November 10, 2003 meeting, respondent upheld the superintendent's October 14, 2003 decision.  Although it appears that petitioner submitted petitions for the readmission of M.S. and P.S. on December 10, 2003, there is no indication in the record that the students were allowed to return to school prior to the end of the school year.

Respondent contends that the appeals must be dismissed as untimely.  An appeal to the Commissioner of Education pursuant to Education Law �310 must be initiated within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR �275.16).  Petitioner commenced her appeals on December 9, 2003, within 30 days of respondent's November 10, 2003 determination upholding the superintendent's decision.  Therefore, I find both appeals to be timely.

Turning to the merits, I note that petitioner does not dispute her children's involvement in the altercation and admits that P.S. struck J.S. and that M.S. threw a book at J.S., inadvertently striking a teacher's aide.  However, petitioner contends that the penalty of suspension for the remainder of the school year is excessive. 

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of A.L., Jr., 42 Ed Dept Rep 368, Decision No. 14,883; Appeal of T.N., 42 id. 235, Decision No. 14,836).  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 A.L., Jr., supra; Appeal of T.N., supra; Appeal of D.C. , 41 Ed Dept Rep 277, Decision No. 14,684). 

Upon the record before me, I find that the students' suspension for the remainder of the school year is not so excessive as to require substitution of my judgment for that of respondent. 

The teacher's aide suffered serious physical injury as a result of being struck by the book thrown by M.S., including a cut to the inside lip that required eight stitches, a broken tooth that required a root canal, headaches, dizziness and a possible concussion.  The record further indicates that even more than three months after the incident, the employee still had not returned to work.  Because of the serious injury that occurred as a result of M.S.'s conduct, the penalty imposed in this case is distinguishable from that imposed in Appeal of Esther F., 39 Ed Dept Rep 357, Decision No. 14,258, and other cases cited by petitioner. 

With respect to P.S., the record indicates that in addition to punching J.S. in the face, he also used obscene and threatening language, screamed and yelled, and incited M.S. and other students to participate in the altercation.    The hearing officer stated that the hearing testimony indicated that immediately prior to P.S.'s assault on J.S., the latter student was in the process of withdrawing, but that P.S.'s conduct caused the incident to escalate into a violent event. 

I also find without merit petitioner's contention that respondent failed to consider that J.S. allegedly used racial slurs to incite M.S. and P.S. to engage in reckless behavior.  The hearing officer specifically noted in his findings and recommendation that the behavior and culpability of J.S., by his use of obscene, threatening or inciteful language, was reprehensible, but did not justify the subsequent escalation of the event by M.S. and P.S. into one of physical violence.

 

THE APPEALS ARE DISMISSED.

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