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Decision No. 13,419

Appeal of IRENE FORESTIERO, on behalf of her son, EMMANUEL, from action of the Board of Education of the Newark Valley Central School District regarding student discipline.

Decision No. 13,419

(June 6, 1995)

Hogan & Sarzynski, Esqs., attorneys for respondent, John P. Lynch, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the suspension of her son, Emmanuel, from the Newark Valley Central School District. The appeal must be dismissed.

By letter dated October 19, 1994, respondent notified petitioner that a hearing would be held on October 25, 1994 pursuant to Education Law '3214(3)(c) to determine if Emmanuel was guilty of insubordination, disorderly conduct or conduct which endangered the safety of others. Specifically, respondent charged that on or about October 11, 1994 Emmanuel had a pellet gun in his possession in school, pointed the gun at another student and threatened that student by holding the gun and warning that he "better not tell", or words to that effect. In a November 1, 1994 decision, the hearing officer found Emmanuel guilty of the charges and recommended his suspension for the remainder of the 1994-95 school year and for the entire 1995-96 school year. The hearing officer further recommended that, subject to the discretion of respondent's superintendent, Emmanuel be admitted to school pursuant to a "contract of conduct" at the beginning of the 1995-96 school year. On November 8, 1994, respondent's superintendent accepted the findings and recommendations of the hearing officer. Petitioner appealed the superintendent's decision to respondent. In a letter dated January 24, 1995, respondent notified petitioner that it had upheld the superintendent's decision. Petitioner commenced this appeal on February 7, 1995.

Petitioner contends that the penalty imposed against Emmanuel is excessive. Petitioner maintains that while Emmanuel did have an unloaded pellet gun at school and did point it at another student, no student was threatened and Emmanuel and the other student were merely "fooling around." Petitioner also asserts that another student involved in the incident received a much less severe penalty. Petitioner contends that Emmanuel was punished more severely because he is a minority student. Respondent denies those allegations.

The test to be applied in reviewing the penalty in a case of student discipline is whether the penalty imposed by the board was so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Homick, 34 Ed Dept Rep 150; Appeal of Lewis, 33 id. 520; Appeal of Vachon, 28 id. 276). The record supports petitioner's contention that Emmanuel did not threaten any other students, but that he was just "fooling around" with the gun. However, I do not find that fact persuasive. "Fooling around" with a gun is a dangerous activity. Moreover, as stated in Appeal of Henry, 34 Ed Dept Rep 470: "bringing guns to school cannot be tolerated. ... The fact that no injuries occurred in this case, whether intended or accidental, is of little merit."

I also find no merit to petitioner's contention that Emmanuel was singled out for a harsher punishment than other students involved. While another student brought the gun to school, that student did not brandish the weapon in the school building or point it at another student. Moreover, the severity of the penalty imposed on Emmanuel was, in part, dictated by his prior disciplinary record, which includes at least four incidents in which Emmanuel exhibited aggressive physical behavior. Nor is there any evidence in the record before me to support petitioner's contention that Emmanuel's penalty was racially motivated. Based on the foregoing, I find no reason to warrant substitution of my judgment on penalty for that of respondent.

Finally, I must comment on two important points. First, the record indicates that Emmanuel will not be of compulsory attendance age during the 1995-96 school year and, therefore, respondent will not be required to provide him with alternative instruction (see Education Law '3214[3][e]). Second, the record indicates, and respondent concedes, that Emmanuel readily cooperated in respondent's investigation of the incident and was forthright in admitting his involvement. Based on those two factors, I urge respondent's superintendent to permit Emmanuel to return to school at the beginning of the 1995-96 school year pursuant to a contract of conduct.

I have reviewed petitioner's remaining contentions and find them without merit.