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Decision No. 13,305

Appeal of JOHN and CHERYL SOLE, on behalf of their son JOHN SOLE, from action of the Board of Education of the Grand Island Central School District concerning student discipline.

Decision No. 13,305

(December 8, 1994)

Ronald A. Sipos, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners appeal respondent's affirmation of its superintendent's decision to permanently suspend their son, John, from school. The appeal must be dismissed.

During the 1993-94 school year, John was 17 years old and enrolled in the eleventh grade of respondent's high school. On March 15, 1994, John was involved in a disturbance in the high school cafeteria, which resulted in his immediate suspension by the school principal for five days, pursuant to Education Law '3214(3)(b). By letter dated March 28, 1994, respondent's superintendent notified petitioners that a hearing pursuant to '3214(3)(c) was scheduled for April 22, 1994 to evaluate disciplinary charges against John. In a decision dated May 6, 1994, the hearing officer found John guilty of endangering the health and safety of others by participating in the March 15 disturbance. The hearing officer noted in his decision that he would have preferred to recommend against John's permanent suspension. However, in view of John's anecdotal record and his exhibited disdain for school and the disciplinary proceeding, the hearing officer felt that John's continued presence in school would be detrimental to other students and, therefore, recommended permanent suspension. The superintendent accepted that recommendation on May 10, 1994. Respondent affirmed the superintendent's decision on May 10, 1994. Petitioner commenced this appeal on August 30, 1994.

Before addressing the merits of this appeal, I must address a procedural issue. Respondent contends that the appeal must be dismissed as untimely. Pursuant to 8 NYCRR 275.16, an appeal to the Commissioner of Education must be brought within 30 days of the act or decision complained of. Respondent issued its decision on May 10, 1994, but petitioners waited almost four months to commence this appeal. Prior to commencing this appeal, petitioners requested that respondent readmit John to school. This request constituted a request for reconsideration of respondent's original decision. Respondent denied this request. Efforts to gain reconsideration or reversal of a decision, however, do not extend the time in which an appeal must be brought (Appeal of Moore, 33 Ed Dept Rep 703; Appeal of Hall and Cooper, 32 id. 377; Appeal of Zeff, 29 id. 5). Thus, because petitioners did not initiate their appeal until almost four months after John was permanently suspended, the appeal is dismissed as untimely.

The petition must also be dismissed on the merits. While petitioners do not contest respondent's finding of guilt, they claim that the penalty imposed is too severe. They allege that John has "learned his lesson" and is anxious to return to school. Specifically, petitioners maintain that permanently suspending John merely because he was in a "food fight" is to extreme. Respondent counters that the suspension is warranted.

The record shows that respondent had experienced repeated food fights for at least two years. One incident in 1993 resulted in an individual suffering a broken hip. In response to those incidents, respondent installed two video cameras in the cafeteria. These cameras taped the March 15 incident in which John was involved. The tape shows that the disturbance was not a harmless prank in which John played a minor role. Rather, the tape

shows John as a major participant in a major disturbance. Besides throwing paper and food, the tape shows John throwing two chairs, turning over a large lunch table and throwing two food trays like a "frisbee". Since the cafeteria contained approximately 250 people at the time of the incident, the potential for injuries to students was high. In addition, the tapes show a great deal of confusion, as students and cafeteria monitors fled to avoid being hit by flying objects. That chaos, brought about by the food fight, was also a potential source of injury. Accordingly, I cannot accept petitioners' characterization of the March 15 incident as insignificant. John's participation in the melee clearly endangered the safety of many individuals.

Petitioners argue that while John's previous school record is not perfect, it does not compel his permanent suspension. John's student records for the 1992-93 school year indicate that he was involved in a food fight, a physical fight with another student, an assault on a student and an act of vandalism of school property. In addition, he was disruptive in class twice and cut class or detention 7 times. During the 1993-94 school year, John was involved in at least 3 food fights, endangered middle school students when he jumped fully clothed into a swimming pool while a middle school class was in session, was found in an unauthorized area of the school on 6 occasions and was insubordinate on 4 times. In addition, he was disruptive in class once and cut or was late for class or detention 28 times. The record further indicates that John has not responded to teacher consultation about his behavior.

This anecdotal record clearly contains a number of incidents in which John has exhibited an alarming disregard for the safety of others. Further, petitioners' contention that John is ready to return to school is belied by the disdain John displays for school officials and the school's disciplinary process. For instance, when assigned to detention, John often did not go. When shown the video tape of his actions of March 15th, he responded that the district had not proven anything. Moreover, John was allegedly involved in a significant number of incidents of misconduct after the completion of his hearing and before he received word of his permanent suspension on May 10th. While I am always reluctant to uphold a permanent suspension of a student because of the deterious effect it has upon his education, I am also mindful of the need to safeguard the well-being of other students. Thus, based upon the record before me, and the fact that a board of education may be held liable for its failure to take appropriate steps to prevent injury from the reasonably foreseeable intentional acts of a student (Mirand v. City of New York, 84 NY2d 44), I will not substitute my judgment for that of the board of education in this case.

Petitioners also maintain that John has been singled out and treated more severely than some of the others who participated in the March 15th incident. However, the record indicates that the punishment received by each student for the March 15th incident was properly case-specific, in other words, based on the specific acts of each student, the age of the particular student and the anecdotal record of that student. Accordingly, petitioners' contention on this issue is rejected.

Petitioners further maintain that John has improperly been punished twice for the March 15 incident. They contend that the suspension imposed by the superintendent and confirmed by respondent was duplicative of the five-day suspension imposed by the principal. However, a superintendent is not precluded from imposing discipline for behavior which was also the subject of a short-term suspension imposed by a building principal (Appeal of Hendrickson, 29 Ed Dept Rep 202; Appeal of Dash, 28 id. 107).