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Decision No. 13,899

Appeal of CYNTHIA and ROBERT W., on behalf of their daughter, ELIZABETH W., from action of the Board of Education of the Clyde-Savannah Central School District regarding student discipline.

Appeal of MELANI and JAMES H., on behalf of their daughter, KRISTEN H., from action of the Board of Education of the Clyde-Savannah Central School District regarding student discipline

Decision No. 13,899

(March 30, 1998)


Villani and Grow, attorneys for petitioners, Mary Katherine Villani, Esq., of counsel

Harter, Secrest & Emery, attorneys for respondent, Anil K. Chaddha, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioners challenge the disciplinary measures imposed on their daughters by the Board of Education of the Clyde-Savannah Central School District ("respondent"). Because the appeals are based on the same facts, they are consolidated for decision. The appeals must be sustained in part.

During the 1996-1997 school year, Kristen H. and Elizabeth W. were sixteen-year old juniors at respondent's junior-senior high school. On February 13, 1997, they were at an athletic event on the school campus. Both students were cheerleaders and were apparently at the event in that capacity. At some point between games, they exited the school building, passing their cheerleading coach and the school principal on their way out. The cheerleading coach followed them into the parking lot. Although the facts are in dispute as to what happened next, it is uncontroverted that the coach found the students near a car belonging to Kristen, asked the students to open the trunk of the car and therein found a bag belonging to Elizabeth containing several liquor bottles. Evidently, Elizabeth had obtained the bottles from home and she and Kristen brought them to school grounds.

On February 27, 1997, respondent's superintendent held separate superintendent's hearings for both students. At the conclusion of those hearings, the superintendent suspended both students for the remainder of the school year. On February 28, 1997, petitioners appealed the suspensions to respondent. On March 12, 1997, respondent modified the superintendent's penalty and allowed the students to return to school on April 21, 1997. However, respondent also imposed additional penalties: suspension from all extracurricular activities and school athletic participation for the remainder of the 1996-97 school year; suspension from participation in cheerleading through the end of the 1997-98 fall sports season; a public service project; and substance abuse testing. On April 4, 1997, I issued an interim order staying only the substance abuse testing portion of the penalty.

Petitioners contend that the penalty imposed is excessive because of the exemplary records of the students and because they merely possessed alcohol in the locked trunk of a car. Petitioners also specifically claim that the substance abuse testing penalty is excessive because it is not a penalty adopted by respondent or recognized by respondent's disciplinary policy and that it violates the students' medical privilege, is unduly burdensome and invasive. Petitioners also specifically claim that the imposition of a community service project is excessive because it is not a penalty adopted by respondent or recognized by respondent's disciplinary policy.

Petitioners further maintain that the students' actions do not fall within the offenses enumerated in Education Law "3214 for which a student may be suspended. In addition, petitioners claim that the students did not receive a fair hearing because the superintendent failed to use his own discretion in choosing a penalty, instead basing his penalty on his publicly stated position as a "zero-tolerance" administrator. Petitioners also allege that respondent failed to provide the students with adequate education during their suspension. Petitioners request that every aspect of the punishment be overturned and that the students' records be expunged. They also request additional tutoring for the students.

Respondent contends that it acted within its discretion and according to district policy in imposing the disciplinary measures in question. It contends that the list of penalties in its disciplinary policy is not meant to be exhaustive, but only indicates a range of possible penalties. Respondent contends that the disciplinary hearing was fair, that the students had an opportunity to present evidence and question witnesses. Respondent maintains that the superintendent based the penalty upon the facts of the case as presented at the hearing. Additionally, respondent points out that petitioners appealed the superintendent's decision, which was modified by respondent. Therefore, it is respondent's revised penalty that is at issue in this matter. Respondent maintains that adequate alternative education was provided to the students.

The decision to suspend a student from school pursuant to Education Law "3214 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, the record supports the superintendent's findings that the students were in possession of alcohol on school property, in direct violation of district policy. Both students admitted at their hearings that they intentionally brought the alcohol to school and that their original plan had been to drink it and that other students knew of their plan. In addition, possession on school grounds was further supported by the testimony of the cheerleading coach. This was not a case where some adult had accidentally left the bottles in the car. It is also of concern that the only explanation for why two of the three bottles found were empty is the possibility that they were already empty when the students brought them to school. Consequently, there is no basis to overturn the determination that the students were guilty of violating district policy.

Education Law "3214 states that a board of education may suspend:

(1) A pupil (who) is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others;

(2) A pupil whose physical or mental condition endangers the health, safety, or morals of himself or of other pupils.

I find no merit in petitioners' contention that the students were not insubordinate, nor did they endanger anyone's health, safety, or welfare and therefore should not have been suspended under Education Law "3214. As discussed above, the record shows that Elizabeth and Kristen conspired and deliberately brought alcohol onto school grounds. Although there is no evidence in the record that the students drank alcohol, the mere availability increased the risk that consumption could occur. According to the hearing transcript, the students made plans to have a drink before the February 13, 1997 game while at a prior game and other students knew about their plans. The students were clearly insubordinate by disobeying a well-known district policy. Respondent asserts that the district's strict stance on drugs and alcohol was reiterated at a student assembly, attended by both students, the week before they were caught with the alcohol. Additionally, the presence of alcohol on school grounds is a threat to the safety of others. A potentially dangerous situation was avoided by the cheerleading coach's actions. The mixture of alcohol, students, and cars is extremely deadly. It is fortunate that no harm came to anyone because of Elizabeth and Kristen's actions. However, that does not diminish the seriousness of their activities. Additionally, I have previously upheld suspensions for possession of alcohol where there was no evidence of consumption (Appeal of Goldstein, 31 Ed Dept Rep 530). In short, I find no merit to petitioners' contentions that the students should not have been suspended under Education Law "3214 because they were not insubordinate and did not endanger the safety, morals, health or welfare of others.

Petitioners do not raise any issues regarding the conduct of the hearing, only the resulting penalty. Petitioners' main complaint seems to be that the superintendent had already decided upon a penalty before the hearing. They contend that the superintendent disregarded district policy and used his own strict "zero-tolerance" stance. The superintendent had apparently made public statements to the effect that students who violated the district's drug, alcohol and tobacco policy would be given long-term suspensions. Petitioners allege that because of this stance the superintendent forfeited his objectivity and, therefore, deprived the students of a fair hearing. Respondent contends that the superintendent based his decision on the facts presented at the hearings. Additionally, respondent's policy gives the superintendent discretion to choose penalties, suspension being one option.

In an appeal before the Commissioner of Education, petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR "275.10) and the burden of establishing the facts upon which he or she seeks such relief (Appeal of Lupiani, 36 Ed Dept Rep 355; Appeal of Marek, 35 id. 314). Petitioners have failed to establish how the resulting penalty was flawed. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Alexander, 36 Ed Dept Rep 160; Appeal of Durkee, 20 id. 94). The test to be applied in reviewing penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Alexander, supra; Appeal of Forestiero, 34 Ed Dept Rep 592; Appeal of Homick, supra. Where a penalty is excessive, the Commissioner will substitute his judgment for that of the board of education (Appeal of Tietje, 34 Ed Dept Rep 567; Appeal of Stewart, 34 id. 193). Based on the record, I cannot conclude that a two- month suspension for possession of alcohol on school grounds is so excessive as to warrant the substitution of my judgment for that of respondent's.

In addition, I do not find Elizabeth's and Kristen's suspension from extracurricular activities excessive. Education Law "3214 does not apply to suspension from extracurricular activities (Appeal of Catherine B., 37 Ed Dept Rep 34; Appeal of Douglas and Judy H., et al., 36 id. 224; Appeal of Winchell, 35 id. 221). A board of education has very broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it is shown that the board has abused its discretion, its policy will be upheld (Appeal ofCatherine B., supra; Appeal of Douglas and Judy H., supra). Based upon the record, I do not find that respondent abused its discretion by curtailing Kristen and Elizabeth's participation in extra-curricular activities.

The remaining penalties, community service and alcohol/drug abuse assessment are inconsistent with Education Law "3214, which limits to suspension from attendance the penalty that may be imposed under that statute. For this reason, past Commissioner's decisions have held that a district may not impose community service as a penalty under Education Law "3214 (Appeal of Eddy, 36 Ed Dept Rep 359; Appeal of Alexander, supra). Therefore, I find respondent's imposition of community service as a penalty to be improper under Education Law "3214. Accordingly, any reference to this penalty must be removed from the students' disciplinary records.

Additionally, a school district cannot condition a student's return to school on participation in counseling services (Appeal of Alexander, supra; Appeal of Holliday, 29 Ed Dept Rep 373). A review of the record shows that respondent initially imposed that condition on the students. While respondent later withdrew that penalty, I caution respondent to avoid imposing such condition in the future. Any reference to this penalty must also be expunged from both students' records.

The remaining issue is the adequacy of the alternative education being provided to Elizabeth and Kristen. However, this issue is moot. It is well settled that the Commissioner will only decide matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Boehm, 37 Ed Dept Rep 208; Appeal of Postal, 36 id. 1). The students were returned to their regular classes on April 21, 1997. Additionally, respondent states that it provided tutoring for the students beyond that date to ensure that they would be able to complete any coursework they missed during their suspension.


IT IS ORDERED that respondent expunge from the disciplinary records of Kristen H. and Elizabeth W. all references to the community service requirements and drug or alcohol abuse evaluation resulting from this incident.