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Decision No. 14,058

Appeal of BARBARA A. UEBEL, on behalf of NICOLE A. UEBEL, from action of the Board of Education of the Cornwall Central School District regarding suspension from school.

Decision No. 14,058

(December 23, 1998)


Scott and Hoyt, attorneys for respondent, Julius Larkin Hoyt, of counsel.


MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Cornwall Central School District ("respondent") to suspend her daughter, Nicole A. Uebel, for 35 days. The appeal is dismissed.

On October 1, 1997, the physical education coach at Cornwall High School smelled marijuana smoke coming from a vestibule area near the Technology Laboratory. Petitioner's daughter, Nicole, was one of three female students in the area at the time. After investigation, Nicole was suspended for five days between October 3 and 9, 1997. A Superintendent's Hearing was held on October 8, 1997, on charges of possession of and smoking marijuana on school grounds. The Superintendent found Nicole guilty of smoking marijuana, and by decision dated October 9, 1997, she extended Nicole's suspension until November 24, 1997. Petitioner appealed to respondent board, and respondent sustained the Superintendent's decision on October 21, 1997. This appeal ensued.

Petitioner contends that, although Nicole admitted to the Assistant Principal investigating the incident that she was present during the incident, accepted a marijuana cigarette from another student, and put the cigarette in her mouth before passing it along, she denied actually smoking the cigarette. Petitioner claims that there is no proof that Nicole actually smoked the cigarette and the evidence therefore does not support the Superintendent's finding of guilt. Petitioner also asserts that a 35-day suspension was excessive, because another student who did not possess or smoke marijuana and only held the match that lit the cigarette received a 5-day suspension. Petitioner further alleges that she and Nicole were led to believe that, if they cooperated in the investigation of the incident, Nicole would receive only a 5-day suspension and there would be no permanent record of this incident. Petitioner seeks an order reversing the determination that Nicole had smoked the marijuana cigarette, declaring that the 35-day suspension was excessive, and expunging the incident from Nicole's permanent record.

Respondent contends that the Superintendent's hearing and disposition complied with all requirements of Education Law "3214 and should be upheld. Respondent further alleges that Nicole's admissions to the Assistant Principal included that she had smoked the marijuana cigarette. Respondent contends that, in any event, petitioner is making an unsustainable distinction between "smoking" the cigarette and merely placing the cigarette in her mouth, and that the evidence fully supports the Superintendent's conclusion that Nicole smoked the marijuana cigarette. Respondent also denies that the 35-day suspension was excessive, denies the grounds alleged by petitioner for the 5-day suspension assessed against another of the three girls involved in the incident, and denies that any agreements were made with Nicole for a shorter suspension in return for her cooperation.

I find that there is sufficient evidence in the record to support the disciplinary determination. Although there is repeated reference to written statements by Nicole that confirmed her admissions to the Assistant Principal, neither party attached a copy of any written statements to their papers. However, petitioner concedes that Nicole admitted to possession of a marijuana cigarette on school grounds, and admitted that, at the very least, she put the cigarette in her mouth before passing it to another student. Moreover, respondent asserts that the Assistant Principal testified at the Superintendent's hearing that Nicole had admitted to him that she had smoked the marijuana cigarette, although no transcript was submitted in the record of this appeal.

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 Shelli, 37 Ed Dept Rep 725; Appeal of Osoris, 36 id. 330; Appeal of Homick, 34 id. 150). A hearing officer may draw reasonable inferences if the record supports the inference (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133; Matter of Payne, 18 Ed Dept Rep 280). Given Nicole's admission of possession of marijuana and putting the cigarette in her mouth, the reasonable inferences to be drawn therefrom, and the Assistant Principal's testimony, I find that the Superintendent's determination is supported by competent and substantial evidence. It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts on the record (Appeal of Shelli, supra; Appeal of Bowen, 35 Ed Dept Rep 136; Appeal of Kittell, 31 id. 419). Accordingly, there is no basis to overturn respondent's determination.

Petitioner also offers certain comments allegedly made by the Assistant Principal -- that he believed Nicole did not actually inhale the marijuana smoke and that he would have given Nicole a shorter suspension -- as grounds for invalidating the Superintendent's decision. However, although the Assistant Principal investigated the incident, he is not the decision-maker under Education Law "3214. Respondent also denies these allegations, and petitioner does not establish that any such alleged comments were part of the hearing record and thus before the Superintendent for her consideration in making her determination. In an appeal before the Commissioner of Education, petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Robert D. and Barbara D., 38 Ed Dept Rep 18; Appeal of Lupiani, 36 id. 355), and petitioner has not sustained her burden of showing that the evidence in the hearing record does not support the Superintendent's determination.

Nor do I find the penalty imposed excessive. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Cynthia and Robert W., 37 Ed Dept Rep 437; Appeal of Alexander, 36 id. 160; Appeal of Durkee, 20 id. 94). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of Cynthia and Robert W., supra; Appeal of Alexander, supra). Nicole was found guilty of smoking marijuana, and admitted to possession of marijuana on school grounds. Drug possession and use on school grounds are very serious offenses. Under these circumstances, I cannot conclude that a 35-day suspension is so excessive as to warrant the substitution of my judgment for that of respondent (seeAppeal of Cynthia and Robert W., supra, concluding that a 2-month suspension for possession of alcohol was not excessive).