Decision No. 13,748

(March 19, 1997)

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Panama Central School District affirming her son Elijah's suspension. The appeal must be sustained in part.

On March 1, 1996, an incident occurred at the swimming pool maintained by the Panama Central School District ("district"), in which a BB-pellet gun was pointed at a student during a community swimming program. The gun, capable of propelling both BB's and pellets, was taken into custody by the Chautauqua County Sheriff's Department. There is no claim that this gun is a "weapon" within the meaning of the federal Gun Free Schools Act (see 20 USC '8921), or that Education Law '3214(3)(d) applies. The "gun" in question here apparently uses a spring mechanism to propel the BB or pellet, not an explosive charge, and is therefore not a "firearm" as defined by 18 USC '921.

The following Monday morning, March 4, the high school principal questioned six students who appeared to be involved in the incident. During this questioning Elijah originally claimed that he had found the gun in his school locker on February 29, but had no idea how it got there. After interviewing several other students, it appeared to the principal that Elijah knew more about the gun than he had originally admitted. During a second interview, at which petitioner was present, Elijah admitted that his original story was false, that he had possessed the gun on school premises, and had placed the gun in his school locker.

On March 14, the district notified petitioner and her husband that Elijah would be the subject of a superintendent's hearing to be held on March 19. The charges accompanying this notice stated that some time during the period of February 16 to March 1, 1996, Elijah possessed a pellet gun on school grounds. Elijah was specifically charged with possession of a weapon on school property in violation of both New York State law and the district's "Gun-Free School Policy #7471."

At the hearing on March 19, petitioner, on behalf of her son, admitted that Elijah had possessed a BB gun at school, but denied that he possessed a pellet gun. Apparently, there is no dispute that only one such gun was at issue, and it is clear from a report of the Deputy Sheriff that this particular gun is capable of propelling both BB's and pellets. Based upon the March 19 hearing, the hearing officer found Elijah guilty of the charge, and recommended a ten day out-of-school suspension running from March 25 to March 29, and again after Easter break from April 15 to April 19. The hearing officer also recommended that Elijah complete 20 hours of community service. Because Elijah is classified as having a learning disability, the matter was also referred prior to assessment of a penalty to the district's Committee on Special Education, which found no connection between his disability and this particular incident. On March 28, the superintendent adopted the hearing officer's recommendation. On April 15, the board of education heard petitioner's appeal, and by a letter dated April 26 rejected the relief she requested. In the meantime, Elijah actually served the ten school day suspension from April 15 to April 29. This appeal ensued.

Petitioner appears to contend that the penalty imposed on her son is excessive, and refers somewhat vaguely to punishments imposed on the other five students apparently involved, without providing details of their cases or punishments.

Respondent generally denies that its disciplinary process was in any way defective, and argues that the matter is moot because the suspension and community service have already been performed.

With respect to the claim of mootness, the Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Alexander, 36 Ed Dept Rep 160; Appeal of Bd. of Educ., East Ramapo Central School Dist., 35 id. 542). However, where, as here, the disciplinary action remains on the student's record, a live controversy remains and the appeal will not be dismissed as moot (Appeal of Wilson, 28 Ed Dept Rep 254).

Although not entirely clear, petitioner also appears to question the standard of proof elicited in the hearing to support the finding of guilt. Petitioner cites Appeal of Swingle (32 Ed Dept Rep 245) for the proposition that guilt cannot be established solely through the testimony of an administrator who has no personal knowledge of the facts. However, it is very clear from the transcript of the hearing of March 19 that possession of the gun was admitted by petitioner as her son's representative. Based upon this admission, the determination of guilt is beyond challenge.

Petitioner also requests that the penalty be set aside as excessive. In cases of suspension, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Alexander, 36 Ed Dept Rep 160; Appeal of Durkee, 20 id. 94). The test to be applied in reviewing the penalty in the case of student discipline is whether the penalty imposed by the board was so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Forestiero, 34 Ed Dept Rep 592; Appeal of Homick, 34 id. 150). If the penalty is excessive, I will substitute my judgment for that of the board (Appeal of Tietje, 34 Ed Dept Rep 567; Appeal of Stewart, 34 id. 193).

Although petitioner argues that her son had a clean record prior to this incident, and was only peripherally involved, she admitted before the board of education that Elijah possessed the gun in question on school grounds for a four day period from Tuesday, February 27, 1996, through Friday, March 1, 1996. In view of this degree of involvement, I do not find the penalty excessive (cf., Appeal of Forestiero, supra, wherein a suspension of approximately a year and a half was upheld; see also Appeal of Alexander, supra).

I must however set aside that portion of the penalty which directed petitioner's son to perform 20 hours of community service. Education Law '3214 only authorizes suspension from attendance as a penalty for the offenses enumerated in the statute. A school district has no authority to impose a community service requirement as a penalty under this statute (Appeal of Alexander, supra).

I have considered the parties' remaining claims and find them without merit. To the extent that petitioner has attempted to introduce issues with respect to her son's individualized education program, I lack jurisdiction to entertain these matters. Education Law '4404(2); 8 NYCRR Part 279.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the disciplinary records of Elijah Eddy all references to community service requirements resulting from this incident.

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