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Decision No. 13,687

Appeal of A.B., on behalf of his daughter, D.B., from action of the Board of Education of the Hyde Park Central School District regarding student suspension.

Decision No. 13,687

(October 11, 1996)

Gerald V. Hayes, Esq., attorney for petitioner

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw and Garrett L. Silveira, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension imposed on his daughter by the Board of Education of the Hyde Park Central School District ("respondent"). The appeal must be dismissed.

Petitioner's daughter, D.B., and another girl, were involved in a fight with a middle school student on January 22, 1996. The middle school student was cut above her eye during the altercation and required 14 stitches. Prior to the fight, D.B. had written a threatening letter about the victim in another student's notebook. The facts are in dispute regarding when that letter had come to respondent's attention.

By notice dated January 23, 1996, respondent's superintendent charged D.B. with engaging in conduct which endangered a student and/or others and insubordination. A hearing on those charges was originally scheduled for January 26, 1996 but was rescheduled and ultimately held on February 7, 1996 before a hearing officer. Both petitioner and respondent were represented by counsel and presented witness testimony. The hearing officer found D.B. guilty of both charges and recommended her suspension for the remainder of the 1995-96 school year.

By letter dated February 12, 1996, the superintendent accepted the findings of guilt but did not follow the recommendation of the hearing officer and suspended D.B. for one year until February 1, 1997. In that decision, the superintendent stated:

While I agree with the facts that are stipulated in the case and the findings of guilt on the specified charges, I do not concur with the recommendation of the Hearing Officer regarding the penalty. I am very concerned about [D.B.'s] assault on another student, the degree to which she injured that student who was two years younger, and that her actions were premeditated.

Petitioner appealed the superintendent's determination to respondent board, which stated in its written decision of March 25, 1996:

Upon reviewing the record, including the materials submitted by [Mr. B.], the Board, except for Board Member Mickey Steiman, hereby determines that the penalty recommended by the Hearing Officer and approved by the Superintendent of Schools, suspension from school for one year, until February 1, 1997, is appropriate and is consistent with its policies and decisional law under Section 3214 of the Education Law.

Petitioner commenced this appeal on May 14, 1996. Petitioner subsequently requested interim relief on August 26, 1996 to permit the student to return to classes for the start of the 1996-97 school year. That request was denied on September 12, 1996.

Petitioner alleges that the suspension imposed upon D.B. was excessive. Petitioner also alleges that respondent board improperly adopted the superintendent's recommendation on penalty, which respondent board's decision incorrectly states was the hearing officer's recommendation. Respondent contends that the appeal is untimely and must be dismissed.

Before reaching the merits, I will address the issue of timeliness. An appeal to the Commissioner of Education must be commenced within 30 days of the decision or performance of the act complained of, except for good cause shown (8 NYCRR 275.16). Respondent board acted in an open meeting on March 14, 1996 to adopt the findings of fact of the superintendent of schools, which endorsed the findings of fact of the hearing officer as well as the superintendent's penalty determination. The board's written decision was dated March 25, 1996, was mailed to petitioner on March 29, 1996, and the return receipt was signed by petitioner on March 30, 1996. This appeal was commenced on May 14, 1996 which is more than 30 days from both the board meeting and the written decision. Petitioner argues that he only realized at the end of the 30 day time period that he needed assistance to complete the appeal and then hired an attorney which caused the delay in filing the appeal. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of a Child with a Disability, 33 Ed Dept Rep 672; Application of Johnson, 32 id. 458; Appeal of Pitney Bowes, Inc., 31 id. 290). Since I find no evidence of unusual circumstances in this case, the appeal is untimely and must be dismissed.

The appeal must also be dismissed on the merits. 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). In this case, there is competent and substantial evidence that D.B. participated in the altercation with the middle school student and struck her repeatedly. Moreover, witnesses testified as to the nature and severity of the fight. One witness specifically saw D.B. strike the student with a left hand blow, a right handed blow and a left hand blow, respectively. Immediately thereafter, the witness noticed a severe gash over the student's left eye, bleeding profusely. The hearing officer found this testimony credible, leading him to conclude that D.B., and not the other girl, severely injured the middle school student. Furthermore, the hearing officer found that D.B. lacked credibility and that her testimony was self-serving. The Commissioner of Education will not substitute his judgment on witness credibility unless the findings are not supported by the facts in the record (Appeal of Kittell, supra; Appeal of John T., 30 Ed Dept Rep 1; Appeal of Chapman, 28 id. 272). Here, the hearing officer's findings of credibility are supported by the record facts. Accordingly, there is no basis to overrule his findings of guilt, which, in substantial part, rested upon his credibility judgments.

I also find proper the imposition of a one-year suspension. Petitioner argues that the board's decision, which attempts to adopt the penalty recommendation of the hearing officer and superintendent, is an error that requires redress. Specifically, petitioner asserts that the board erred because the hearing officer's recommendation on penalty and the superintendent's were different, contrary to the statement in the board's written decision. However, respondent characterized this discrepancy as a typing error, not a substantive one, and points to two resolutions adopted by the board evincing its understanding in this matter. The board's minutes of its March 14, 1996 meeting specifically indicate that respondent board first moved to adopt the findings of fact of the superintendent, which endorsed the findings of fact of the hearing officer. In a separate motion, respondent board adopted a resolution to accept the penalty determination of the superintendent of schools. Thus, the board's erroneous statement that it was adopting the penalty "recommended by the hearing officer and approved by the Superintendent" was harmless error.

Finally, petitioner argues that the suspension imposed by respondent was too severe because his daughter has no prior disciplinary record. Petitioner reluctantly raises the issue that his daughter, who is black, received a longer suspension than the other student involved in the fight, who is white. While petitioner's perception is regrettable, I find that the superintendent's justification for the higher penalty was not improper. While he may have erred as to the actual age difference between the girls, D.B. was older than the victim and had threatened the victim with bodily harm before attacking her. The superintendent found that the extent of the injuries, the age of the parties, and the premeditation of the act lead him to impose a higher penalty. Based on the record before me, I find no reason to overturn that determination.

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