Decision No. 13,557

(March 6, 1996)

Rains & Pogrebin, Esqs., attorneys for respondent, Jessica S. Weinstein, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the permanent suspension of her son, C.C., from the Middle Country Central School District. The appeal must be sustained in part.

The facts underlying this appeal were set forth in petitioner's prior appeal (Appeal of L.K., 35 Ed Dept Rep 129), which I dismissed for petitioner's failure to exhaust her administrative remedies. Petitioner now appeals respondent's October 25, 1995 determination which affirmed its superintendent's May 4, 1995 decision to permanently suspend her son from the school.

Petitioner contends that the penalty imposed constitutes unjust and excessive punishment, that the first letter providing petitioner with notice of the charge against her son contained allegations that were false, that certain witnesses were not present at the disciplinary hearing, that respondent failed to inform her of the severity of the fight in which her son was allegedly involved and that respondent failed to provide appropriate supervision in the cafeteria where the fight occurred.

Respondent denies petitioner's contentions and requests that the appeal be denied on the principle of res judicata, based upon an assertion that the previous decision in L.K., supra, also constituted a dismissal on the merits of petitioner's claims.

My dismissal of petitioner's original petition was made on procedural grounds, based upon petitioner's failure to exhaust her administrative remedies by failing to bring an appeal to the board of education pursuant to Education Law'3214(3)(c). I made no decision on the merits of petitioner's claim that the penalty imposed was excessive and could not properly have reached the merits until the board of education first rendered its decision on the matter. The additional language in that decision, referring to my finding of no merit to petitioner's "claims," refers to petitioner's other procedural claims, relating to the notice of the hearing and the events leading up to the hearing. Accordingly, I will not dismiss the petition on the grounds of res judicata.

Petitioner contends that the permanent suspension of her son is excessive. Because of its deleterious effect upon the student's education, permanent suspension should be reserved for grave circumstances, such as the need to safeguard the well-being of other students (Appeal of Sole, 34 Ed Dept Rep 270). While there is no dispute that petitioner's son was involved in the fight which precipitated his original suspension, there is nothing in the record to indicate that he engaged in similar conduct on other occasions. In general, a single fight, without more, is an insufficient basis to permanently suspend a student from school (Appeal of Stewart, 34 Ed Dept Rep 193). Aside from the student's established involvement in the fight at issue, respondent's permanent suspension was based upon the incidents in his anecdotal record. That record reflects that the sum and substance of the student's prior discipline all resulted from acts of truancy and tardiness. While it is possible for respondent to discipline the student for acts of insubordination stemming from his failure to attend classes, a school district may not suspend a student for nonattendance (Appeal of Strada, 34 Ed Dept Rep 629; Appeal of Hynds, 34 id. 553; Appeal of Ackert, 30 id. 31). Accordingly, I find the permanent suspension of petitioner's son to be excessive, and I will substitute my judgment for that of respondent (Appeal of Stewart, supra). I find that the period of suspension already served by the student, from May 1995 to the present, is sufficient to impress upon him the seriousness of his conduct and the need for improvement.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner's son be immediately admitted to respondent's schools.

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