Appeal of K.G., on behalf of his son G.G., from action of the Board of Education of the South Country Central School District regarding student discipline.

Decision No. 16,262

(July 22, 2011)

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

KING, Jr., Commissioner.--Petitioner appeals the determination of the Board of Education of the South Country Central School District (“respondent”) to permanently suspend his son, G.G.  The appeal must be sustained in part.

In 2010, G.G. began his senior year at Bellport High School in respondent’s district.  By letter dated October 29, 2010, the high school principal notified petitioner that G.G. was suspended for five days for insubordination, profanity, aggressive/threatening language, refusal to comply with a directive and leaving school without permission.  By letter dated November 2, 2010, respondent’s superintendent notified petitioner that a superintendent’s hearing would be held on November 8, 2010 in connection with G.G.’s “insubordinate and aggressive behavior and use of profanity.”  At the superintendent’s hearing, G.G. admitted the conduct charged.  By letter dated November 9, 2010, the superintendent notified petitioner that he found G.G. guilty of the charges and that G.G. was expelled from attendance at the district’s schools.  By letter dated November 15, 2010, petitioner appealed the superintendent’s decision to respondent which, by letter dated December 10, 2010, upheld the decision to permanently suspend G.G.  Petitioner’s request for interim relief was denied on January 19, 2011.  This appeal ensued.

Petitioner challenges G.G.’s permanent suspension as excessive.  Petitioner does not raise any procedural objection in relation to the disciplinary action, nor does he assert that his son did not engage in the conduct charged.  Rather, petitioner argues, interalia, that the principal’s October 29, 2010 notice is different from the superintendent’s November 9, 2010 notice in that it referred to aggressive/threatening “language” rather than “behavior.”  Petitioner maintains that the principal testified that he did not feel threatened by G.G.’s behavior and that G.G.’s anecdotal record contains no incidents of a violent or aggressive nature.  Petitioner maintains that respondent’s policy calls for a superintendent’s hearing after three charges of insubordination, that the superintendent was not present at the hearing and that he was not qualified to make the decision to permanently suspend G.G. in that he was biased.  Petitioner argues that no other students were permanently suspended for insubordination, profanity and aggressive language.  Petitioner alleges that G.G. was never offered counseling, that G.G. is not failing academically and that he only needs six credits to graduate.  Finally, petitioner contends that respondent’s decision was arbitrary and capricious.

Respondent alleges that the petition fails to state a clear and concise statement of the claim upon which petitioner seeks relief and fails to join the superintendent as a necessary party.  Respondent also contends that the penalty was not excessive.

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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Respondent contends that the superintendent is a necessary party and petitioner’s failure to join him requires dismissal of the appeal.  I disagree.  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 did not seek specific relief against the superintendent based on his alleged misconduct at the hearing.  Therefore, the superintendent is not a necessary party in this case.  To the extent that Appeal of K.S. (43 Ed Dept Rep 492, Decision No. 15,063) or any other previous decisions by the Commissioner in appeals filed pursuant to Education Law §310 may be interpreted to the contrary, those decisions are expressly overruled.

Petitioner maintains that the superintendent’s November 9, 2010 determination letter is “in error” because it includes the term “threatening language” as opposed to “threatening behavior,” which was included in the October 29, 2010 notice.  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 Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  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 (Bd. of Educ. of Monticello Cent. School Dist. at 140).  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 Cent. School Dist. at 139; Appeal of a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Other than his conclusory allegation, petitioner provides no evidence to establish that he was in any way prejudiced by the alleged error.  Accordingly, I find that the alleged error in the superintendent’s November 2, 2010 determination letter did not significantly alter the meaning of the charge and therefore did not deprive petitioner of adequate notice of the alleged misconduct.

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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).

A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances, such as where the student exhibits “an alarming disregard for the safety of others” and where it is necessary to safeguard the well-being of other students (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849; Appeal of L.T., 44 id. 89, Decision No. 15,107; Appeal of Y.M., 43 id. 193, Decision No. 14,968).

G.G. admitted to the charges of insubordination, aggressive behavior and use of profanity.  Specifically, G.G. admitted that when in the hallway between periods and in the presence of other students he was asked by the school principal to stop using a personal music device.  In response he refused, indicating that he was having a bad day.  He then proceeded to berate the principal with profanity a “good dozen, dozen and a half times.”  Although such conduct is not to be tolerated, it does not, of itself, evidence an alarming disregard for the safety of others, nor is there any indication that this extreme penalty is necessary to protect other students (seeAppeal of Coleman, 41 Ed Dept Rep 101, Decision No. 14,628).

In support of the penalty imposed, respondent points to G.G.’s anecdotal record over a period of three years and alleges that his most recent infraction, when considered with the past record, warrants expulsion.  G.G.’s record reveals over 40 incidents of repeated cutting classes, detention and in-school suspension; leaving school grounds; insubordination; disruptiveness; kicking, hitting and punching lockers and other objects; and threatening to blow-up the school and murder a teacher.  Although I agree that a significant period of suspension is appropriate in view of G.G.’s admitted conduct and his anecdotal record, the extraordinary penalty of permanent suspension is not warranted under the circumstances presented in this case.

I note that respondent’s reliance on G.G.’s threats to blow-up the school and murder a teacher to support its argument that a permanent suspension is now justified is belied by the fact that such incidents occurred on January 28, 2010 and November 28, 2007, respectively.  Moreover, respondent’s argument is undermined by the fact that the district permitted G.G. to return to school following out-of-school suspensions relating to these incidents.

G.G. has already been suspended for approximately nine months.  I find this period of suspension coupled with the fact that G.G. will have to repeat all or part of his senior year should be sufficient to impress upon him the seriousness of his misconduct.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent admit G.G. to the schools of the district.

IT IS FURTHER ORDERED that respondent remove any reference to a permanent suspension from G.G.’s disciplinary record and adjust such record in accordance with this decision.

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