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Decision No. 13,659

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Red Creek Central School District regarding student discipline.

Decision No. 13,659

(August 26, 1996)

Matthew R. Fletcher, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals her son's suspension by the Board of Education of the Red Creek Central School District ("respondent"). The appeal must be dismissed.

Petitioner's son was an eighth grade student at the time of the incident that gave rise to this appeal. He was classified as learning disabled by respondent's committee on special education (CSE) and has an individualized education program.

On the evening of March 8, 1995, the principal of respondent's junior-senior high school received a telephone call from a parent who informed him that her son indicated that a student had had a handgun at school on or about March 7, 1996. School officials subsequently interviewed the students who allegedly witnessed the incident and determined that petitioner's son had brought a gun to school and had it in his locker where he showed the gun to certain other students. Statements were taken from these students. On March 10, 1995, a State police officer visited the school and inquired about the incident. The principal then spoke to petitioners' son, who denied that he had brought a gun to school. The student permitted the principal to search his locker and no gun was found. On March 10, 1995, the principal notified respondent's superintendent and advised him that he had investigated the incident. On March 13, 1995, the superintendent met with the student's parents, the principal, the guidance counselor and a notetaker. At that meeting, petitioner stated that she owned a handgun, but that it was in a secure location that had not been recently disturbed.

By letter dated March 15, 1995, the superintendent informed petitioner that her son was being charged with possession of a firearm on school premises and that a suspension hearing on the charge would be held on March 21, 1995. The hearing was rescheduled twice by the superintendent by letters to petitioner dated March 17 and March 22, 1995. The hearing was eventually conducted on March 31, 1995 by a hearing officer appointed by the superintendent. On June 16, 1995, the hearing officer submitted his recommendations and findings of fact to the superintendent.

On July 7, 1996, the superintendent wrote to the student's parents and advised them that he concurred with the hearing officer's findings of guilt but that he would reserve the imposition of any penalty until the CSE met to assess whether the student's disability had any effect on his conduct. The CSE met, determined that the student's conduct was not related to his disability and submitted its findings to the superintendent by letter dated July 26, 1995. That finding was not appealed by petitioner pursuant to 8 NYCRR Part 200. On August 3, 1995, the superintendent adopted the findings of the hearing officer and determined that petitioner's son should be suspended from school for the first half of the 1995-96 school year and placed on probation for the second half of that year.

On August 7, 1995, petitioner appealed the superintendent's determination to respondent. On August 9, 1995, respondent met in executive session and reviewed the hearing record. In a meeting held on August 23, 1995, respondent adopted the superintendent's determination. This appeal ensued.

Petitioner alleges that the hearing officer's decision was erroneous and requests that I overturn it. Petitioner also requests that her son's educational records be expunged and seeks reimbursement of legal fees. Respondent contends that its determination was based upon competent and substantial evidence.

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 Bowen, 35 Ed Dept Rep 136; Appeal of Homick, 34 id. 150; Appeal of Lewis, 33 id. 520; Appeal of Pierrot, 33 id. 67). While petitioner contends that her son did not bring a gun to school, four boys testified that he showed them a gun at his locker. Respondent also presented the statements of ten boys who indicated that petitioner's son told them he had brought a gun to school. Although petitioner's son denied having a gun at school and identified the item he showed the boys as a computerized spell checker, the hearing officer, after reviewing the facts, found that the student had brought a gun to school as alleged. It is well settled that the Commissioner will not substitute his judgment on determinations of witness credibility unless the findings are not supported by the facts in the record (Appeal of Kittell, 31 Ed Dept Rep 419; Appeal of John T., 30 id. 1; Appeal of Chapman, 28 id. 272). Here, the hearing officer's finding of credibility are supported by the record. Therefore, there is no basis to overrule his finding of guilt.

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