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Decision No. 16,023

Appeal of R.C., on behalf of his son C.C., from action of the Board of Education of the Patchogue-Medford Union Free School District regarding student discipline.

Decision No. 16,023

(February 6, 2010)

Tor Jacob Worsoe, Jr., Esq., attorney for petitioner

Guercio & Guercio, LLP, attorneys for respondents, Douglas A. Spencer, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Patchogue-Medford Union Free School District (“respondent”) to suspend his son, C.C.  The appeal must be dismissed.

On March 11, 2009, C.C. was involved in a physical altercation with several other students at respondent’s high school.  The high school principal suspended C.C. for five days from March 11 through March 19, 2009.[1]  By letter dated March 11, 2009, the superintendent notified petitioner that a superintendent’s hearing would be held on March 18, 2009.

The superintendent presided at the hearing, at which the high school dean of students (“dean”) and C.C. testified.  Petitioner and his wife appeared without counsel.  By letter dated March 18, 2009, the superintendent found C.C. guilty of “engaging in disorderly, disruptive and insubordinate conduct that endangered the safety, morals, health and welfare of himself and others when he had a physical altercation with two students in the hall between the bell exchange.”  The superintendent imposed a 60-day suspension.  By letter dated April 3, 2009, respondent notified petitioner that it upheld the superintendent’s determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 13, 2009.

Petitioner contends that respondent’s determination is arbitrary and capricious because neither he nor respondent was permitted to review video surveillance, which would have shown that C.C.’s involvement in the altercation was merely defensive; he also asserts that respondent improperly denied a subpoena for the video.  Petitioner asserts that C.C. intervened only to defend his friend who was the object of an unprovoked attack by another student, and whose injuries were severe enough to require stitches.  Petitioner asserts further that C.C. was forced to act because no school safety personnel were nearby or approaching.  Petitioner also contends that respondent’s determination is arbitrary and capricious because the participants in the altercation received disparate penalties.  Petitioner requests that C.C.’s suspension be annulled and expunged from his record.

Respondent contends that the petition must be dismissed because it fails to state a cause of action upon which relief may be granted and fails to join the superintendent as a necessary party.  Respondent contends further that the suspension is based on competent and substantial evidence that C.C. engaged in inappropriate behavior that violated the district’s Code of Conduct (“code”) and that the penalty is appropriate.

I must first address several procedural issues.  Education Law §3214(3)(c)(1) requires that for a suspension of five days or more, a superintendent’s hearing be held, after which,

An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.  The board may adopt in whole or in part the decision of the superintendent of schools.

Petitioner attaches to the petition an affidavit from C.C. and two other participants in the altercation and the hospital record of C.C.’s friend.  These exhibits were not part of the record considered at the hearing or by respondent although petitioner apparently submitted them to respondent when he appealed the superintendent’s determination.  As noted above, Education Law §3214(3)(c)(1) provides that a board of education make its decision solely upon the record before it.  Since these documents were not part of the record, respondent rightly declined to consider them, and I cannot consider them here (seeAppeal of P.K., 41 Ed Dept Rep 421, Decision No. 14,733).

Petitioner also objects that respondent did not view video surveillance footage from the day of the altercation before upholding the superintendent’s decision on April 3, 2009, asks that I consider such recording in this appeal and contends that respondent improperly denied his subpoena for the video recording, served on or about April 21, 2009.  As discussed above, respondent would have been precluded from reviewing any video recording since it was not introduced into evidence at the hearing and therefore it was not part of the record under Education Law §3214(3)(c)(1).  For the same reason, I cannot consider the video recording in this appeal (seeAppeal of P.K., 41 Ed Dept Rep 421, Decision No. 14,733).  Moreover, petitioner’s subpoena was a nonjudicial subpoena and pursuant to CPLR §2308(b) it was incumbent upon petitioner to seek an order in Supreme Court compelling compliance (Matter of Bd. of Educ. of the Highland Falls-Fort Montgomery Central School Dist., 22 Ed Dept Rep 96, Decision No. 10,894).

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).

Respondent contends that the superintendent is a necessary party and petitioner’s failure to join him requires dismissal of the appeal.  I disagree.  As noted above, under Education Law §3214(3)(c)(1), an appeal lies from the superintendent’s decision to the board of education, from which petitioner appeals to the Commissioner pursuant to Education Law §310.  Accordingly, petitioner is appealing a decision of respondent board of education.  In this case, petitioner made no allegations that the superintendent acted improperly in conducting the hearing nor did he seek specific relief against the superintendent (cf. Appeal of K.S., 43 Ed Dept Rep 492, Decision No. 15,063, superintendent is a necessary party where petitioner alleges superintendent acted improperly in conducting suspension hearing).  Therefore, the superintendent is not a necessary party in this case.

Turning to the merits, the 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., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).

The hearing record reveals that although C.C. may not have been the instigator and was indeed defending his friend, he nonetheless admitted punching one student and hitting others and was aware that fighting was not allowed under the district’s code.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).  Accordingly, respondent’s determination is supported by substantial and competent evidence.

Petitioner maintains that participants in the altercation received disparate penalties.  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 J.C., 46 Ed Dept Rep 562, Decision No. 15,596; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).  C.C. received a 60-day suspension.  In light of his admitted conduct, I cannot conclude that the penalty imposed was excessive.  The records of other students are not before me.

THE APPEAL IS DISMISSED.

END OF FILE

[1] The principal’s suspension letter with the specific charge does not appear in the record.