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Decision No. 13,265

Appeal of GERALD and JUDITH HOMICK, on behalf of their son WILLIAM, from action of the Board of Education of the Union Springs Central School District regarding student discipline.

Decision No. 13,265

(September 26, 1994)


Davoli, McMahon & Kublick, P.C., Esqs., attorneys for petitioner, David Stanton, Esq., of counsel

Matthew R. Fletcher, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners appeal the decision of the Board of Education of the Union Springs Central School District ("respondent") to suspend their son, William, for the remainder of the 1993-94 school year. The appeal must be dismissed.

William was an eleventh grade student at Union Springs High School in respondent school district when the alleged incidents giving rise to his suspension occurred. On October 28, 1993, William allegedly threatened to "egg" the home of the teaching assistant supervising his detention class. On November 3, 1993, William was allegedly disruptive and insubordinate during a physical education class. Also on November 3, 1993, William allegedly kissed his teacher in economics class. As a consequence of these acts, the high school principal suspended William on November 4, 1993. Due to holidays and school closings, William was suspended for four days as of November 15, 1993, the date of a hearing held pursuant to Education Law '3214. At that hearing, the hearing officer found William guilty of the conduct charged and reviewed his anectodal record to determine penalty.

On November 29, 1993, the hearing officer held:

William Homick is apparently failing eleventh grade. Most of the problem appears to be a complete failure on his part to do any homework and/or classwork. Over the past two years, he has been truant or tardy to school about 46 times. He has been disruptive both in classes and halls and discipline sessions about 35 times. He has been reported for harassing, inappropriate language, and vulgar language about 17 times. He has also been found to have vandalized school property and stolen food from the cafeteria. Since William Homick has repeatedly shown little desire to perform academically, has repeatedly violated the various school rules and regulations regarding school and social behavior norms, and has reached the age of sixteen before July 1, 1993, he no longer has an absolute right to attend school. Neither can he be compelled to attend school. Therefore, I direct that William Homick be immediately and permanently suspended from the Union Springs Central School.

On January 10, 1994, at petitioners' request, respondent reviewed the hearing officer's determination and reduced the penalty from a permanent suspension to a suspension for the rest of the 1993-94 school year. Respondent further stated that before William returned to school in September 1994, he must sign a statement agreeing to abide by the rules of the district. Respondent notified petitioner of this determination on February 9, 1994. This appeal followed.

Petitioners assert that the initial suspension of William did not comply with Education Law '3214, because respondent never delegated to the principal the authority to suspend students. Petitioners further argue that the hearing officer's findings of guilt were arbitrary and capricious, the punishment was too severe and that no due process was afforded William because the hearing officer considered their son's anecdotal record. Petitioners also claim that respondent's review of the hearing officer's determination should not have been conducted in executive session. Petitioners further assert that respondent failed to provide William with counseling in violation of the Commissioner's regulations. Respondent contends the appeal is untimely, that the findings of fact are supported by the evidence and that its decision to hear the appeal in executive session was proper.

An appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of, although the Commissioner may excuse the failure to commence a timely appeal for good cause shown in the petition (8 NYCRR 275.16). In this instance, the appeal was commenced on March 3, 1994, more than thirty days after the January 10, 1994 board meeting at which respondent fixed William's penalty. Petitioners ask that I excuse the delay because the letter specifying respondent's action was not sent to them until February 9, 1994. I do not find this argument persuasive since petitioners were present at the January 10, 1994 board meeting and were aware of the decision on that date.

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits. Petitioners' assertion that the principal had no authority to suspend William initially is erroneous. The record reflects that pursuant to Education Law '3214, respondent had adopted a resolution delegating suspension authority to the principal. Therefore, the principal did have authority to suspend William.

Regarding petitioners' challenge to the finding of guilt, the decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Lewis, 33 Ed Dept Rep 520; Appeal of Pierrot, 33 id. 67; Appeal of Kittell, 31 id. 419). The record established that the hearing officer's determination of guilt was based on competent and substantial evidence. William does not dispute that he made some of the comments and engaged in some of the conduct for which he was found guilty. Consequently, there is no basis to overrule respondent's decision to uphold the hearing officer's determination that William is guilty of insubordination and disruptive behavior.

Concerning the admission of William's anecdotal record into evidence by the hearing officer, an anecdotal record may be admitted into evidence to aid the hearing officer in determining an appropriate penalty after there has been a finding of guilt (Appeal of Lewis, supra; Appeal of Norwood, 31 Ed Dept Rep 464; Appeal of Stokes, 25 id. 117). The record reflects that the anecdotal record was only admitted after the finding of guilt. Furthermore, petitioners were notified that the anecdotal record of their son would be considered and that they could review this record prior to the hearing. Contrary to petitioners' contention, there is no requirement that a parent be notified of the specific incidents in the anecdotal record that may be considered in assessing a penalty. Therefore, consideration by the hearing officer of William's anecdotal record after the determination of guilt was proper.

Turning to the issue of the appropriateness of the penalty, the anecdotal record reveals that William was disciplined for acts of insubordination and disruptive behavior on numerous occasions during the two previous school years. Based on the foregoing, I find that the reduced penalty imposed upon William by respondent is not so excessive that it would warrant substitution of my judgment for that of respondent, even if the appeal were timely (Appeal of Lewis, supra; Appeal of Kittell, supra; Appeal of Vachon, 28 Ed Dept Rep 276).

It must be noted that the reduction of the hearing officer's recommended penalty was necessary. The hearing officer's recommended penalty was based in part on William's truancy from school and poor academic record. However, an out-of-school suspension is not authorized as a penalty for a student who is truant (Education Law '3214(3)(e); Matter of Ackert, 30 Ed Dept Rep 31). Moreover, penalizing a student who does poorly academically with an out of school suspension belies logic. If a student is doing poorly academically, he or she needs assistance or a change of program, and not a suspension from instruction. Accordingly, the board's reduction of the penalty was appropriate.

Petitioners' assertion that respondent board's review of the hearing officer's recommendation should have been conducted in a public session is not a matter within the Commissioner's jurisdiction. The appropriate forum for addressing alleged Open Meetings Law violations is in the Supreme Court of the State of New York, not an appeal to the Commissioner of Education (Public Officers Law '107; Appeal of Greening, 32 Ed Dept Rep 195; Appeal of Kushner, 31 id. 351; Appeal of Strober, 30 id. 4).

Finally, petitioners contend that William's rights are somehow violated by respondent's requirement that he sign a statement agreeing to abide by the rules and regulations of the school district. Respondent's request that William execute this document merely demonstrates his understanding of school rules. I find there are no special rules or regulations imposed upon William by respondent. Therefore, his right to attend school remains unaffected.

I have reviewed petitioners' other claims and find them without merit.