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Decision No. 13,739

Appeal of EDGAR OSORIS and JASON OSORIS from action of the Board of Education of the Chenango Forks Central School District regarding student discipline.

Decision No. 13,739

(February 25, 1997)

Judy Valek, Esq., attorney for petitioner

rHogan & Sarzynski, Esqs., attorneys for respondent, Michael G. Surowka, Esq., of counsel

MILLS, Commissioner.--Jason Osoris, a student, and Edgar Osoris, his father, ("petitioners") appeal the decision of the Board of Education of the Chenango Forks Central School District ("respondent") to suspend Jason until the close of the 1996-97 school year. The appeal must be dismissed.

This is the second appeal before the Commissioner of Education concerning this student. In Appeal of Osoris, 35 Ed Dept Rep 250, I sustained in part petitioners' appeal where the student was suspended for the remainder of the 1994-95 school year and the 1995-96 and 1996-97 school years. In that decision, I determined that the penalty imposed by respondent was excessive and ordered that Jason be admitted to school. The date of that decision was January 13, 1996 and the student returned to school in mid-January. On May 9, 1996, a statement of charges was given to Jason concerning incidents that occurred on April 18, 1996 and May 6 and 7, 1996 in which Jason allegedly used inappropriate language and was verbally and physically threatening to school personnel. Jason was charged with four violations of respondent's Discipline Code for Student Behavior contained in respondent's High School Student Handbook for the 1995-96 school year:

d. Verbal or physical intimidation.

f. Pronounced disrespect toward any faculty, staff member or other person supervising students. This includes any school sponsored activity on or off school premises.

j. Possession, sale, or use of clothing or materials containing language which is profane, lewd, vulgar, or inappropriate and may incite or offend another person.

l. Any willful act which disrupts the normal operation of the school community.

On May 16, 1996, a hearing was scheduled pursuant to Education Law '3214 that was adjourned at the request of petitioners and their attorney. Respondent subsequently held the hearing on May 22, 1996. On June 9, 1996, the hearing officer issued his findings of fact and found that Jason was insubordinate or disorderly and engaged in conduct which endangered the safety, morals, health or welfare of others. A hearing was held on June 27, 1996 on the issue of penalty. On July 7, 1996, the hearing officer recommended that Jason be suspended for the first semester of the 1996-97 school year.

Upon review, the superintendent accepted the hearing officer's findings of fact and recommendations, but determined that the student should be suspended for the remainder of the 1995-96 school year and the entire 1996-97 school year based on his assessment that Jason did not give any meaningful indication that he would change his behavior. On August 27, 1996, respondent reviewed and affirmed the superintendent's decision. This appeal ensued. Petitioners' request for interim relief pending a determination on the merits was denied on October 16, 1996.

Petitioners request that the determination and penalty be set aside. Petitioners also raise the issue that a student's anecdotal record cannot be considered for a subsequent offense if the anecdotal record was reviewed and considered for a previous suspension. Respondent contends that the penalty in this matter and consideration of the student's anecdotal record was appropriate.

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 Homick, 34 Ed Dept Rep 150; Appeal of Lewis, 33 id. 520; Appeal of Pierrot, 33 id. 67). The record established that the hearing officer's determination of guilt was based on competent and substantial evidence. Although petitioners claim that the decision was against the weight of the evidence, the record demonstrates that Jason engaged in the conduct of which he was found guilty. The hearing officer found that Jason spoke to a teacher in a verbally threatening way and in such close proximity to the teacher that he was physically threatening. Although I am troubled by the testimony of respondent's witness that the teacher spoke to Jason in a profane and extremely inappropriate way a few days prior to the May 6, 1996 incident, I do not believe that the teacher's conduct mitigates the student's behavior as petitioners argue. Consequently, there is no basis to overrule respondent's decision upholding the determination of guilt.

Concerning the penalty, it is well settled that a student's anecdotal record may be received in evidence at a disciplinary hearing and considered after a finding of guilt as to specific charges (Appeal of Lewis, 33 Ed Dept Rep 520; Appeal of Ezard, 29 id. 135; Matter of Stokes, 25 id. 117). The record reflects that Jason's anecdotal record was introduced after the hearing officer's finding of guilty was made. His anecdotal record was used only to fix the penalty. Petitioners cite Appeal of Hendrickson, 29 Ed Dept Rep 202, for the proposition that respondent could not consider Jason's anecdotal record in assessing the penalty for the suspension at issue since it was previously utilized to assess a penalty in a prior suspension. Petitioners misapply that decision. Hendrickson held that:

Once a student has been punished for an offense, he cannot be charged with it and punished for it a second time. It may become part of his anecdotal record, for consideration only as to the penalty for future offenses, but may only be used to that extent in subsequent disciplinary action.

In this case, respondent only reviewed Jason's anecdotal record after he was found guilty of new disciplinary charges that were separate and distinct from the previous misconduct reflected in his anecdotal record. In view of these circumstances, I find petitioners' contention that respondent could not review the Jason's anecdotal record again without merit.

Jason's anecdotal record reveals that he was disciplined for acts of insubordination and disruptive behavior 34 times during the 1994-95 school year, including incidents of abusive language, failing to follow directives, and smoking on school grounds. As petitioners note, Jason's anecdotal record reflects an improved semester for the Spring of 1996. Other than the charges that are the basis of this appeal, Jason's anecdotal record indicates two warnings and two days' detention since his readmission to school. Nonetheless, given the circumstances of this case, including my consideration of the student's long history of disciplinary problems, I do not find the suspension for the remainder of the 1996-97 school year to be so excessive as to warrant the substitution of my judgment for that of respondent (Appeal of Ezard, supra; Matter of Elkins, 27 id. 99; Matter of Albanese, 26 id. 327). As the superintendent noted in his decision, Jason engaged in inappropriate conduct and does not give any meaningful indication that he is willing to change. Furthermore, I note that although Jason is above the age of compulsory school attendance, respondent has offered him alternative education. Regrettably, Jason has refused respondent's offers. In light of this decision, I urge respondent to again extend its offer of alternative education to allow Jason the opportunity to receive his high school diploma. I, likewise, urge petitioners to work with respondent toward that same goal.