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Decision No. 12,801

Appeal of GARY I. from action of the Board of Education of the Susquehanna Valley Central School District and Thomas McCarthy regarding the conduct of a teacher.

Decision No. 12,801

(September 15, 1992)

Shaw, O'Brien and Crowley, Esqs., attorneys for respondents, Frank C. Shaw, Esq.,

of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent board's refusal to discipline respondent McCarthy for an incident that occurred in his classroom on January 31, 1992. The appeal must be sustained in part.

During the 1991-92 school year, petitioner's son attended sixth grade in the Susquehanna Valley Central School District (the district). He was a student in respondent McCarthy's class at the district's Cedarhurst Elementary School (Cedarhurst). On November 13, 1991, Cedarhurst issued report cards for the first quarter of the school year. Petitioner's son received a grade of "F" in reading, arithmetic, spelling and science, and "D-" in social studies and English. Petitioner and his wife met with respondent McCarthy on November 14, 1991 to discuss their son's poor academic performance. Respondent McCarthy agreed to keep them informed of the student's progress, while petitioner and his wife agreed to monitor their son's homework.

Cedarhurst issued report cards for the second quarter on January 29, 1992. Again, petitioner's son received failing grades. On January 31, 1992, petitioner and his wife met with the principal of Cedarhurst. Contending that respondent McCarthy had failed to notify them of the student's continuing difficulties, they requested that their son be removed from Mr. McCarthy's class. Although the principal denied this request, he agreed to check the student's assignments personally, on a daily basis. Later that day, the principal called petitioner's son to the office to discuss this arrangement.

The incident about which petitioner complains occurred after the student had returned to his classroom from the principal's office. The parties present conflicting accounts of the incident. Petitioner contends that, when his son returned, his desk had been moved to the front of the classroom. According to petitioner, respondent McCarthy told the student to tip the desk upside down, at which time he removed and essentially confiscated the student's personal belongings. Petitioner further contends that, after the desk was returned to its normal position, McCarthy ordered the student "to sit and stand about eight times," causing the student "to cry out of embarrassment and humiliation." Petitioner also states,

Mr. McCarthy then asked [the student] if he knew who David Letterman was and [the student] answered that he did not. Mr. McCarthy told [the student] that David Letterman was a talk show host and he has some pets on his television show. He then went on to say that from now on [the student] would be his [Mr. McCarthy's] pet. At this time, he know [sic] included the whole class in the conversation by asking them to vote on a name for his new pet. He then proceeded to tell [the student] to speak and [the student], not knowing what to say, was told to say "William wants a cracker."

Petitioner states that McCarthy then informed the student, "[f]rom this day forth, I'm going to make your life a living hell."

Respondent McCarthy's description of the incident is quite different. He contends that, when he asked the class for their homework, the student became upset and started to cry because he could not find his homework. When the student told McCarthy that he had last seen the homework in his desk, Mr. McCarthy asked him to bring his desk up to the front of the classroom so they could look for the homework together. McCarthy contends that the desk was "so full of toys, old papers, tissues, library books, books from home, cards and other items that the desk's top would not close." Consequently, he asked the student to clear the desk completely. McCarthy states that he and the student sorted through the contents, organizing the desk. However, they did not find the homework. Although respondent McCarthy does not address petitioner's allegations specifically, he states,

[t]hereafter, Mr. McCarthy attempted to use his best efforts both to make clear to [the student] that homework was important while simultaneously trying to improve the humor of [the student]. ... Mr. McCarthy's efforts proved successful and [the student] was laughing and did not appear to cry again that day. [The student] appeared to be in such good spirits for the rest of the day that near the end of the day, [he] had decided to run for a class office.

On February 3, 1992, petitioner met with the district's assistant superintendent. He apparently demanded that his son be removed from Cedarhurst, and that the district take disciplinary action against respondent McCarthy. The assistant principal subsequently discussed the matter with the Cedarhurst principal, who instructed respondent McCarthy to prepare a written report about the incident. In the teacher's absence, the principal then interviewed other students who had witnessed the incident. Based on these interviews and respondent McCarthy's report, the principal concluded,

In my opinion it was a case where the humor, although apparently understood by the youngster and his classmates at the time, was not appreciated by the boy's parents. ... I am convinced that Mr. McCarthy's purpose ... was purely pedagogical and, as far as motive is concerned, is beyond reproach.

At the principal's request, respondent McCarthy telephoned petitioner on February 3, 1992 to apologize for the incident. The next day, petitioner's son was transferred to the district's Brookside Elementary School.

On February 6, 1992, petitioner met with the district's superintendent, repeating his demand for disciplinary action against respondent McCarthy. The superintendent placed petitioner on the agenda for the next board of education meeting. On February 20, 1992, petitioner presented his concerns to the board, in executive session. Although respondent McCarthy did not appear personally before the board, he presented his view of the incident through a letter from his attorney dated February 27, 1992.

By letter dated March 16, 1992, the superintendent informed petitioner of the board's decision, directing "that the matter be handled on the administrative level." The record indicates that respondent McCarthy subsequently received a letter from the superintendent admonishing him to be "a little more careful in the future with his choice of language and his conception of humor." Petitioner commenced this appeal on May 14, 1992.

Petitioner requests a public apology for the incident. Although there is no legal basis for demanding such relief, the record shows that petitioner has already received an apology from respondent McCarthy.

Petitioner also requests the appointment of a State Education Department monitor to observe respondent McCarthy's class for a period of one year. This request must similarly be denied. The Education Law vests school districts with the authority to employ, supervise and discipline teachers (Education Law ''1709[16]; 1709[33]; 3012; 3020-a). The jurisdiction of the Commissioner of Education in such matters is appellate in nature (Education Law ''310; 3020-a[5]). While it appears that petitioner asked the district to discipline respondent McCarthy, he does not ask for such relief on this appeal, nor does he contend that the district's decision to handle the situation administratively was arbitrary or capricious. Consequently, I do not pass upon the reasonableness of the board's decision. Respondents should be aware, however, that classroom control through public humiliation is not acceptable conduct for a teacher (Appeal of Board of Educ. of Hoosick Valley Central School Dist., 28 Ed Dept Rep 429). Because of the parties' widely divergent accounts of the incident, the record herein does not establish whether respondent McCarthy engaged in such conduct. Consequently, I cannot find that the district's refusal to discipline respondent McCarthy was improper.

Petitioner also requests that his son be provided with a tutor for the amount of time he spent in respondent McCarthy's class. Again, because there is no legal basis for such relief, petitioner's request must be denied. However, it is clear that this student has not been well served by the educational system throughout his years in the district. I am particularly disturbed by the admission in the district's answer that, "either all or almost all of [the student's] prior teachers have recommended that he be held back a year but this proposal has always been strenuously and successfully fought by the child's father." It is the duty of the board of education

[t]o prescribe the course of study by which the pupils of the schools shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant (Education Law '1709[3]).

While school districts are encouraged to involve parents in decisions regarding their children's education, the ultimate responsibility for appropriate placement rests with the district (id.). Because it appears the district has not fulfilled this responsibility, I direct the district to review this student's record and take immediate steps to provide him with a placement appropriate to his level of academic achievement.

Finally, petitioner requests reimbursement for the expenses of this appeal. This request must be denied. The Commissioner of Education has no authority to award costs in appeals brought pursuant to Education Law '310 (Appeal of Sileo, 28 Ed Dept Rep 313), and petitioner did not seek a waiver of the filing fee, as provided by 8 NYCRR 275.9(b).



IT IS ORDERED that the district take immediate steps to provide petitioner's son with placement at an appropriate grade level.