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Decision No. 15,123

 

Appeal of M.P., on behalf of her son J.P., from action of the Board of Education of the Albion Central School District regarding student discipline.

 

 

(October 7, 2004)

 

Shirley A. Gorman, Esq., attorney for petitioner

 

David W. Lippitt, Esq., attorney for respondent

 

     MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Albion Central School District (�respondent�) to affirm her son�s suspension from school for the remainder of the 2003-2004 school year.  The appeal must be dismissed.

     Petitioner�s son, J.P., is enrolled in the Charles D�Amico High School (�high school�) in respondent�s district.  On January 14, 2004, J.P. allegedly offered to sell oxycontin, a controlled substance, to another student for $5.00.  By letter of the same date, the high school principal notified petitioner that he was suspending J.P. for five days commencing January 14 as a result of this incident.  Additionally, by letter dated January 15, 2004, respondent�s superintendent notified petitioner that she would conduct a superintendent�s hearing on January 22, 2004 to consider whether a further suspension was warranted.  The notice charged J.P. with possession of a controlled substance with intent to sell on school property based on the allegation that �[o]n Wednesday, January 14th, during 2nd block, [J.P.] offered oxycontin to another student for $5.00.  James took $4.00 from the student and told him to meet him in the lobby after school.�

     At the superintendent�s hearing, the district called J.P. as its first witness.  He testified that the substance confiscated by school officials was �crushed up� hydro-codeine, which had been prescribed for him more than a year earlier when he broke his leg.  The district also called S.W., a student, who testified that during 2nd block on January 14, 2004, J.P. offered to sell her some oxycontin and that after she declined, she overheard J.P. making arrangements to sell some to D.M., another student.  Immediately after class, S.W. reported the incident to the high school�s resource officer (�officer�).  S.W.�s testimony was corroborated by D.M., who testified that J.P. showed him a white envelope containing a white powdery substance that he identified as oxycontin, which he offered to sell to D.M. for five dollars.  D.M. gave J.P. four dollars and the two agreed to meet after school to complete the transaction.

     The officer testified that after speaking with S.W., he reported the incident to the high school vice-principal.  The two then escorted J.P. from class and after searching his locker and belongings, recovered an envelope containing a white powdery substance.  The officer also testified that oxycontin is a controlled substance and that it is �pretty much the same thing� as hydro-codeine.

     In addition, D.M. testified that J.P. telephoned him on January 14, 2004 and threatened him about his testimony.  The officer also testified that D.M. had reported this threat to him.

     At the conclusion of the hearing, the superintendent found J.P. guilty of the charge and after considering his anecdotal record, recommended a suspension for the remainder of the school year.  Petitioner appealed the superintendent�s determination to respondent.  By letter dated March 2, 2004, the district clerk advised petitioner that respondent had sustained the superintendent�s determination.  This appeal ensued.

Petitioner contends that J.P. was denied due process because the disciplinary notice did not charge J.P. with making a threat and because the superintendent allowed the district to call J.P. as a witness and did not offer petitioner the opportunity to call witnesses.  Petitioner also claims that respondent improperly permitted the superintendent to be present during executive session while respondent considered petitioner�s appeal.  Petitioner requests that I annul J.P.�s suspension, direct expungement of his records and permit him to return to school.  Respondent generally denies that it violated J.P.�s due process rights and maintains the petition should be dismissed in its entirety.

Because J.P. was suspended for the remainder of the 2003-2004 school year, which has ended, the appeal is moot except to the extent that petitioner seeks expungement of J.P.�s records (Appeal of a Student with a Disability, 43 Ed Dept Rep    , Decision No. 15,021; Appeal of M.K., 42 id. 405, Decision No. 14,894; Appeal of Mace, 40 id. 110, Decision No. 14,433).

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 CSD v. Commissioner of Education, et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, 293 AD2d 37; Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723; Appeal of Harlan, 40 id. 309, Decision No. 14,488).  A hearing officer may draw reasonable inferences if the record supports the inference (Bd. of Educ. of Monticello CSD v. Commissioner of Education, supra; Appeal of J.C., supra; Appeal of Harlan, supra). In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of J.C. and P.C., supra; Appeal of Harlan, supra).  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 J.C., supra; Appeal of Harlan, supra).

The Court of Appeals has stated that the charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing." (Bd. of Educ. of Monticello CSD v. Commissioner of Education, et al., supra).  "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." (Id.)  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello CSD v. Commissioner of Education, supra; Appeal of a Student with a Disability, 39 Ed Dept Rep 427, Decision No. 14,278).

The hearing notice charged J.P. solely with possession of a controlled substance with intent to sell on school property.  Accordingly, I find the notice did not provide J.P. with sufficient information to prepare a defense to the charge that he had threatened D.M.  The superintendent, therefore, erred by permitting this testimony.  However, because the hearing testimony on the charge that J.P. offered to sell a controlled substance to a classmate is sufficient to support both the hearing officer�s finding of guilt and the penalty recommendation, I find the error harmless.

I also find no merit to petitioner�s claim that her son was denied the opportunity to call witnesses.  The notice of discipline advised petitioner that she had the right to call witnesses at the superintendent�s hearing.  Additionally, at the beginning of the hearing, the superintendent advised petitioner and her son, among other things, that they had the right to call witnesses and would be given that opportunity after the district finished presenting its witnesses.  Petitioner did not indicate at any point during the hearing that she, in fact, wished to call witnesses.  Moreover, aside from her claim that J.P. did not have an opportunity to respond to testimony concerning his alleged threat, petitioner does not identify in this appeal any witnesses she was allegedly prevented from calling, or specify the substance of their testimony.  Under these circumstances, I find that petitioner has failed to establish that she was deprived of her right to call witnesses.

Nor has petitioner established that respondent acted improperly by permitting the superintendent to be present during the executive session when respondent considered petitioner�s appeal.  Respondent�s attorney explains that although both he and the superintendent were present during the executive session neither commented on the merits of appeal.  Under these circumstances, I find no violation of petitioner�s procedural rights.

I have considered petitioner�s remaining contentions and find them without merit.

 

THE APPEAL IS DISMISSED.

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