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Decision No. 15,306

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

Decision No. 15,306

(August 29, 2005)

Benjamin L. Herzweig, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Christopher M. Powers, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Islip Union Free School District ("respondent") suspending her son, C.L., from school. The appeal must be dismissed.

C.L. was enrolled in the fifth grade in respondent's schools during the 2003-2004 school year. On June 21, 2004, C.L.'s teacher asked her students to write an essay about their most memorable day in school. C.L. submitted an essay describing an incident that occurred in November of the previous school year where he felt that he had been wrongly accused by his fourth grade teacher, Mr. C., of taking another student's pencil and was made to stay inside during recess as a result. C.L. further recounted that while inside for recess, he began banging his head on his arm in frustration, which prompted "Mrs. G." to ask him what was wrong. In the essay, C.L. claimed that he responded: "One day... one day I will take a knife and kill [Mr. C.] for what he has done. And if he does this again, I will stab him until nothing is left but the knife in my hand." Toward the end of the essay, C.L. wrote: " If you are reading this right now and thinking that it is not true, well you're wrong it is true and for a fact that I will kill him one day."

C.L.'s fifth grade teacher read the essay the following day, became concerned, and gave it to the school social worker who showed it to the school psychologist. The psychologist brought the essay to the principal and the two then summoned C.L., who, in response to the psychologist's questioning, confirmed that he wanted to hurt Mr. C. That same day, the principal notified C.L.'s parents that C.L. was being suspended for three days because he had "indicated a strong desire to kill a teacher" in his essay.

The following day, C.L. was evaluated by the district's psychiatrist pursuant to the district's threat assessment policy. In his written report, the psychiatrist notes, among other things, that C.L. "identifies at the current time ideation regarding thought to kill [Mr. C.] in the future but not at the current time." He further notes that C.L. may suffer from " an Adjustment Disorder with mixed disturbance of emotions and conduct or that of a more serious Depressive Disorder or possibly a Post-Traumatic Stress Disorder" but that these diagnostic possibilities were "only hypothetical," given the psychiatrist's limited contact with C.L. The psychiatrist recommended, among other things, that C.L.'s parents consult with a psychiatrist to establish a "treatment protocol and regimen" for C.L., and that C.L. not be permitted to return to school at that time, and that he be re-evaluated by the district psychiatrist before any decision is made regarding his placement for the fall.

Thereafter, the district issued a Notice of Charges alleging that C.L. was "disorderly and/or conducted himself in such a manner as to endanger the safety, morals, health and welfare of another" based on the allegation that he had written in his essay that "One day... one day I will take a knife and kill [Mr.C.] for what he has done. And if he does this again, I will stab him until nothing is left but the knife in my hand . . . If you are reading this right now and thinking that it is not true, well you're wrong, it is true and for a fact that I will kill him one day." According to respondent, the Notice of Charges was mailed to C.L.'s parents, as well as his attorney, on July 26, 2004.

At the superintendent's hearing that followed, the district introduced testimony from C.L.'s fifth grade teacher, the school psychologist and the principal. The psychologist testified about his June 22, 2004 meeting with C.L. after reading his essay, and his subsequent referral of the matter to the district's psychiatrist, who evaluated C.L. the following day. The psychologist also testified about the psychiatrist's findings and recommendations contained in his report.

Petitioner introduced an August 24, 2004 letter from a psychiatrist who evaluated C.L. on July 23 and 27, 2004 and spoke with C.L.'s psychotherapist, in which the psychiatrist opines, among other things, that "[C.L.] is not a danger to himself or to others, including specifically the teacher about whom he wrote his essay" and that "[he did] not think [C.L.] manifests any true psychiatric disorder and further limiting his return to his normal life in school could in fact cause a depressive syndrome to evolve."

Petitioner also introduced a letter from C.L.'s psychotherapist stating, among other things, that he was treating C.L., that, in his opinion, C.L. did not presently pose a danger to anyone, and that he recommended that C.L. start school in September. In addition, petitioner introduced an August 11, 2004 psychological evaluation of C.L. by a psychologist who recommended, among other things, that C.L. continue in therapy, and further noted that he did not "see any indications why [C.L.] shouldn't return to school."

At the conclusion of the hearing, the hearing officer found C.L. guilty of the charges and recommended that he be suspended for the entire 2004-2005 school year, but that he be permitted to apply for readmission at the end of the third marking period. By letter dated September 2, 2004, respondent's superintendent advised C.L.'s parents that he was adopting the hearing officer's finding of guilt and penalty recommendation. Petitioner appealed the superintendent's determination to respondent. By letter dated September 15, 2004, respondent's president advised petitioner's attorney that it had been unable to address petitioner's appeal at its board meeting the previous evening because the hearing transcript was not yet available. Petitioner commenced this appeal on September 20, 2004. Shortly thereafter, respondent affirmed the superintendent's determination. Petitioner's request for interim relief was denied on October 13, 2004.

Petitioner contends that respondent's determination was arbitrary and capricious and not based on competent evidence, that penalty imposed was excessive, and that the hearing officer was biased. Petitioner also contends that the Notice of Charges is improper because it does not specifically identify which portion of the district's code of conduct C.L. allegedly violated. For relief, petitioner requests that C.L. be permitted to return to school, that his suspension be reversed or reduced, and that the three-day principal's suspension be expunged.

Respondent contends that its determination is supported by substantial evidence and that the penalty imposed was appropriate.

The appeal of C.L.'s suspension for the 2004-2005 school year must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of D.W., 43 Ed Dept Rep 188, Decision No. 14,965; Appeal of L.B., 43 id. 159, Decision No. 14,952; Appeal of N.S., 42 id. 190, Decision No. 14,817). Petitioner only requests expungement of the principal's three-day suspension and does not request expungement of C.L.'s records concerning his suspension by respondent for the 2004-2005 school year. Since C.L. has served the suspension, no further meaningful relief can be granted, and the appeal of respondent board's determination must be dismissed as moot (Appeal of R.R. and K.R., 41 Ed Dept Rep 405, Decision No. 14,726; Appeal of D.H., 41 id. 142, Decision No. 14,640; Appeal of N.B., 40 id. 515, Decision No. 14,542).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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 M.P., 44 Ed Dept Rep 132, Decision No. 15,123; Appeal of J.C. and P.C., 41 id. 395, Decision No. 14,723). A hearing officer may draw reasonable inferences if the record supports the inference (Bd. of Educ. of Monticello CSD v. Commissioner of Education, et al., 91 NY2d 133; 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). 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., 41 Ed Dept Rep 395, Decision No. 14,723; Appeal of Harlan, 40 id. 309, Decision No. 14,488). 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. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723; Appeal of Harlan, 40 id. 309, Decision No. 14,488).

I find no merit to petitioner's claim that the Notice of Charges was improper. 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., 91 NY2d 133). "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, et al., 91 NY2d 133; Appeal of a Student with a Disability, 39 Ed Dept Rep 427, Decision No. 14,278).

I find that respondent's notice satisfies this standard. The notice clearly advised C.L. of the conduct that formed the basis for disciplinary action and therefore provided C.L. with enough information to prepare his defense. Nor do I find any merit to petitioner' s contention that the notice was improper because it failed to cite a specific provision of respondent's code of conduct.

I also find substantial evidence in the record to support the superintendent's finding of guilt. Contrary to petitioner's assertion, I find that the threats expressed in the essay, which C.L. did, in fact, submit to his teacher, were sufficient to support the charges, notwithstanding the fact that the threats were not expressed directly to Mr. C. (seeAppeal of James B., 32 Ed Dept Rep 637, Decision No. 12,940).

In light of this disposition, I need not address the parties remaining contentions or the issue of penalty.

THE APPEAL IS DISMISSED.

END OF FILE