Appeal of A.S., on behalf of her daughter M.S., from action of the Board of Education of the Rush-Henrietta Central School District, Middle School Principal Denise Zeh, and Middle School Assistant Principal Mark Pringle regarding student discipline.

Decision No. 15,514

(December 28, 2006)

DesMarteau & Beale, attorneys for respondents, George DesMarteau, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Rush-Henrietta Central School District (the “board”), its middle school principal and assistant principal (collectively “respondents”) to suspend her daughter, M.S.  The appeal must be dismissed.

During the 2005-2006 school year, M.S. attended seventh grade in respondents’ middle school.  On June 14, 2006, M.S. witnessed another student writing the words “bomb threat” on the mirror in the girls’ bathroom.  After the writing was reported by a teacher, the school was evacuated and searched, but no bomb was found.  When students returned to their classrooms, the principal made an announcement over the public address system emphasizing the seriousness of the incident and asking students who had any information about it to contact an adult immediately.  M.S. did not come forward.

Thereafter, the assistant principal identified M.S. on a videotape leaving the bathroom with another girl at the time of the writing.  The assistant principal claims that he questioned M.S. about the incident for over an hour, but that M.S. said that the words were already written on the mirror when she entered the girls’ bathroom and that she had no idea who wrote the words or when they were written.  Only after the student who had written the words told the assistant principal what had occurred did M.S. admit that she had witnessed the writing.

By letter dated June 15, 2006, the principal suspended M.S. for five days, from June 15 through June 21, and notified petitioner of a superintendent’s hearing to be held on June 22, 2006.

At the hearing, M.S. was found guilty of endangering the health and safety of students and staff and insubordination.  The superintendent suspended M.S. for 10 weeks.  Petitioner appealed the suspension.  On August 9, 2006, the board upheld the superintendent’s determination.  This appeal ensued.

Petitioner contends that the suspension was excessive and that M.S. had the right to remain silent.  Petitioner seeks expungement of M.S.’s records.

Respondents claim that M.S. failed to report the incident and lied to the assistant principal in response to direct questioning.  Respondents maintain that M.S.’s conduct violated the school’s code of conduct and that she was therefore properly suspended.

Education Law §3214(3)(a) authorizes a board of education, board of trustees, sole trustee, superintendent of schools, district superintendent, or principal of a school to suspend a “pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.”

The district’s code of conduct lists insubordination under the category “Insubordinate Behavior(s) & Continued and Willful Disobedience.”  The code of conduct defines “insubordination” as “the failure or unwillingness to submit to school district authority or the failure to follow the reasonable request of an administrator, teacher, or school employee.”  In addition, the code of conduct section entitled “Endangering the Health and Safety of Yourself and/or Others,” imposes an affirmative duty to report:  “All students are expected to promptly report violations of the code of conduct to a teacher, counselor, or administrator.”

In this case, there is evidence to support the finding that M.S. was guilty of both insubordination and a reporting violation.  Petitioner admits that M.S. witnessed another student writing the words “bomb threat” on the bathroom mirror.  M.S. acknowledged that she heard the principal’s announcement regarding the serious nature of the incident and requesting students with information of the incident to come forward.  M.S. also testified at the hearing that she knew this announcement was made in response to the incident she had witnessed.

Furthermore, at the superintendent’s hearing, the assistant principal testified that in response to his questions about the incident, M.S. said that “bomb threat” was already written on the mirror when she entered the bathroom and that she had no idea who wrote it or when it was written.   Petitioner argues that the district violated her daughter’s right to remain silent.  The district code of conduct provides, “Students have the right to remain silent when charged with an offense until the parents and/or legal advisor are present.”  However, M.S. did not simply remain silent; she made false statements in response to direct questioning by the assistant principal.  Based on the record before me, I find no basis to overturn the finding of guilt on the charges of insubordination and endangering the health and safety of students and staff.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  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 of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).  As stated above, M.S. admitted witnessing the June 14, 2006 incident, failed to report the incident, and did not respond truthfully to direct questioning about the incident.

Given these circumstances, I find that the penalty imposed in this case is not irrational or unreasonable and is within respondents’ discretion (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131).  Accordingly, I will not substitute my judgment for that of respondents.

THE APPEAL IS DISMISSED.

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