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Decision No. 13,157

Appeal of JENNIFER SIMON, on behalf of her son, Andre, from action of the Board of Education of the City School District of the City of Poughkeepsie regarding student suspension.

Decision No. 13,157

(April 18, 1994)

Statewide Youth Advocacy, Inc., attorney for petitioner, Betsy B. Swan, Esq. of counsel.

Shaw and Silveira, Esqs., attorneys for respondent, Jay M. Siegel, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the suspension of her son by the Board of Education of the City School District of the City of Poughkeepsie ("respondent"). The appeal must be dismissed.

Petitioner’s son was a 15 year old seventh grade student at Poughkeepsie Middle School when, on February 13, 1992, he participated in a group assault on a high school student at 3:00 p.m. off school grounds. The following day, the principal suspended petitioner’s son for five days for his involvement in the altercation. Charges stemming from the incident were also filed in Family Court. The superintendent scheduled a hearing pursuant to Education Law "3214(3) for February 28, 1992. Petitioner’s son was charged with four counts of conduct endangering himself or others and four counts of insubordination.

Petitioner sought and was granted an adjournment of the hearing to obtain counsel. Counsel for petitioner then sought an indefinite adjournment pending resolution of the Family Court action. The hearing officer agreed to an adjournment until April 8, 1992, but the superintendent overruled that decision and scheduled the hearing for March 25. Due to petitioner’s scheduling conflicts, the hearing was rescheduled and finally held on April 3, 1992.

At the hearing, counsel for petitioner again requested an adjournment pending resolution of the Family Court charges. The request was denied. Respondent presented four witnesses. A police detective and two assistant middle school principals testified that petitioner’s son admitted punching and kicking the victim. One of the assistant principals testified that petitioner’s son said he had the victim in a headlock and then punched and kicked the victim when he was down on the ground. She also testified that another student involved in the attack implicated petitioner’s son and stated that he saw him use a headlock. The detective testified that petitioner’s son claimed that he acted after the victim lunged at him. A student eyewitness to the assault testified that after the attack was underway, the victim lunged at petitioner’s son, and petitioner’s son subsequently punched and kicked the victim. Petitioner’s counsel cross-examined the witnesses, but petitioner’s son did not testify.

The hearing officer found petitioner’s son guilty of all charges and recommended suspension for the remainder of the 1991-92 school year and the first half of the 1992-93 school year. The superintendent adopted the hearing officer’s recommendations on April 8, 1992. On May 18, petitioner appealed to respondent, which affirmed the superintendent’s determination. This appeal ensued.

Petitioner raises three issues on appeal. First, she claims that the hearing officer’s failure to grant an adjournment pending resolution of the Family Court charges violated her son’s due process rights. Specifically, she maintains that her son could not present self-defense testimony without waiving his Fifth Amendment privilege against self-incrimination. Second, she claims that the term of the suspension was excessive because respondent failed to consider whether her son acted in self-defense and to take into account the period of suspension prior to the hearing. Finally, petitioner argues that the guilty determination was not supported by substantial evidence. In addition, petitioner asks for attorney’s fees and costs. After reviewing the documents and hearing the transcript, I find petitioner’s claims without merit.

With regard to the first issue, petitioner claims that the failure to adjourn the superintendent’s hearing while Family Court charges were pending impeded her son’s ability to present justification testimony that he acted in self-defense. However, while there is no question that petitioner may request an adjournment of a superintendent’s hearing pending resolution of criminal charges (Appeal ofWilkins, 19 Ed Dept Rep 190), preservation of the Fifth Amendment privilege does not require the superintendent to adjourn the hearing because participation in the hearing does not compel petitioner’s son to incriminate himself (Pollnow v. Glennon, 594 F. Supp. 220, aff’d 757 F.2d 496; Appeal of Schmarge, 23 Ed Dept Rep 359). Thus, proceeding with the hearing did not violate petitioner’s son due process rights. Moreover, in this case, petitioner’s son’s claim of self-defense was brought out on the record by the testimony presented. The transcript reveals that petitioner’s counsel had ample opportunity to present a justification defense in her cross-examination of the student eyewitness, the detective and the assistant principals to whom petitioner’s son admitted his actions.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in objectionable conduct (Appeal ofPierrot, 33 Ed Dept Rep 67; Appeal of Kittell, 31, id. 419. The transcript is replete with testimony describing the extent of petitioner’s son’s participation in the assault, including information that he may have acted in self-defense, as well as his admissions that he punched and kicked the victim. The transcript also indicates that the hearing officer considered the entire testimony in reaching a decision. In view of such evidence, there is no basis to overrule or find the decision arbitrary, capricious or unreasonable (Appeal of Pierrot, supra; Appeal of Kittell, supra).

Given the extent of petitioner’s son’s participation in the assault, I find that the penalty imposed upon him was not so excessive as to warrant substitution of my judgment for that of respondent (Appeal of Kittell, supra.) Also, because the delays between the initial suspension and the date of the hearing were to accommodate petitioner, there can be no fault ascribed to the hearing officer for beginning the penalty from the date of the hearing.

Finally, petitioner’s claim for attorney’s fees must be denied. The Commissioner lacks statutory authority to award attorney’s fees or costs in an appeal pursuant to Education law "310 (Appeal of Silano, 33 Ed Dept Rep 20; Appeal of Martin 32 id. 381).