Decision No. 13,494

(October 23, 1995)

Van Nostrand & Martin, Esqs., attorneys for petitioner, William C. Morrell, Esq., of counsel

Guercio & Guercio, Esqs., attorneys for respondent, Thomas M. Volz,

Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's suspension of his son for the remainder of the school year. The appeal must be dismissed.

On February 8, 1995 respondent's high school was evacuated after a smoke bomb was set off in a fire emergency exit door in the building. After making an announcement to the student body concerning the incident, respondent's principal questioned nine or ten students who implicated petitioner's son, Brian, and two other students. During a subsequent discussion with the principal, Brian admitted that he and another student carried the bomb from a third student's locker, and that the other student lit the match.

On February 9, 1995, petitioner was notified by letter that Brian was suspended and could not return to school until a superintendent's hearing took place. On February 16, 1995, petitioner was notified that his son was charged with "discharging a device on school grounds" and that a hearing would be held on February 24, 1995. Respondent's high school was in winter recess the week of February 20, 1995.

On February 24, 1995, the hearing took place and the only witness was respondent's principal. On February 28, 1995, respondent's hearing officer submitted an advisory report finding Brian guilty and recommending his suspension for the remainder of the school year and participation in counseling and a civic requirement. On March 3, 1995, the superintendent adopted the hearing officer's findings. On March 21, 1995, respondent board affirmed the hearing officer's recommendations, but deleted the counseling and civic requirements. This appeal ensued.

Petitioner alleges that his son's due process rights were violated by the length of the suspension before the hearing, lack of specificity in the charges and bias on the part of the hearing officer. Petitioner also alleges that respondent's disciplinary code violates 8 NYCRR 100.2(l)(1)(ii). Petitioner seeks to have the penalty set aside and his son's records expunged.

Respondent raises a number of affirmative defenses. It contends that it met its burden of proof concerning Brian's guilt, that the suspension was not disproportionate to the offense, that petitioner's due process rights were not violated with regard to timeliness, that its determination was not arbitrary and capricious, that its hearing officer was unbiased and that its disciplinary code was proper.

Education Law '3214(3)(c) provides in pertinent part:

It is clear from the record that the hearing was held more than five days after Brian's suspension, in violation of the statute. However, while students should be afforded the due process this section provides, it does not follow from that provision that a hearing held more than five days after the first date of suspension is a nullity. The appropriate remedy for violation of this rule is an application by the student that he be admitted to school pending a hearing (Ross v. Disare, 500 F. Supp 928; Hunt v. Wilson, 72 Misc.2d 360, 339 NYS2d 287; Appeal of Kulik, 21 Ed Dept Rep 567; Appeal of Malpica, 20 id. 365; Matter of Henderson, 11 id. 3; Matter of Cousins, 10 id. 245). Petitioner was notified of Brian's suspension on February 9, 1995, and the February 16, 1995 letter set a date of February 24th for the superintendent's hearing. Although school was not in session the week of February 20th due to winter recess and therefore those days are not considered missed school days, Brian was suspended for seven days altogether before a hearing was held. This delay in the superintendent's hearing is not a basis to overturn the suspension. However, I remind respondent of its obligation under Education Law '3214 to provide superintendent's hearings in a timely manner.

Petitioner also challenges respondent's disciplinary code and alleges that it does not comply with 8 NYCRR 100.2(l)(1)(ii). Respondent submits a four page discipline code, a statement of student rights and responsibilities and the district's "Dangerous Instrumentalities and Weapons in School Policy." Petitioner states that respondent's discipline code is not complete and does not give sufficient notice of long-term suspensions. My review of these policies reveals that they are adequate under the regulation, and I note that respondent had authority to suspend petitioner's son based on its Dangerous Instrumentalities policy, since it includes explosive devices, such as the smoke bomb set off at respondent's high school. Petitioner's objections to respondent's disciplinary policies are therefore without merit.

Further, the decision to suspend Brian from school was based on competent and substantial evidence that he participated in the conduct charged. Brian was suspended from school for participating in the explosion of a smoke bomb, which is a very serious offense. Although the superintendent's hearing was improperly delayed, Brian had the opportunity to attend this hearing with his parents and was represented by competent counsel. At the hearing, the principal testified as to the events leading up to Brian's suspension, and testified that Brian admitted his involvement. Petitioner's counsel had an opportunity to cross-examine the principal concerning Brian's admission. Petitioner's counsel did not impeach the principal's testimony or present any evidence that Brian did not participate in the incident.

My review of the record indicates that other than the delay in holding the superintendent's hearing, the procedures followed with regard to petitioner's son were fair. I find no basis to conclude that the procedures followed in the course of the hearing itself were improper or that the superintendent's determination was arbitrary or capricious.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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