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Decision No. 14,125

Appeal of KAREN and JOHN HYDE, on behalf of MARCUS HYDE, from action of the Board of Education of the Thousand Islands Central School District regarding student discipline.

Decision No. 14,125

(May 8, 1999)

Conboy, McKay, Bockman & Kendall, LLP, attorneys for petitioners, David B. Geurtsen, Esq., of counsel

O'Hara and O'Connell, PC, attorneys for respondent, Timothy D. Dietz, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Thousand Islands Central School District ("respondent") to affirm their son's suspension. The appeal must be dismissed.

During the 1997-1998 school year, Marcus Hyde was a tenth grade student at the Thousand Islands High School. On the afternoon of February 17, 1998, a teacher at the school observed Marcus in possession of a plastic bag containing green, leafy material, which he was showing to another student. When questioned, Marcus admitted that the material in the bag was marijuana, and stated that he had been asked by a friend to hold it for him, because the friend feared that he would be caught with the substance.

By letter dated February 17, 1998, the high school principal suspended Marcus. A superintendent's hearing was held on February 23, 1998, at which Marcus testified that he was holding the bag of marijuana for a friend. The superintendent issued his written decision on March 18, finding that Marcus had been in possession of marijuana in violation of school rules, as charged, and suspending him until June 24, 1998. (The superintendent's decision further stated that he would consider re-admitting Marcus no earlier than May 18, 1998, based upon his academic effort and no further involvement with controlled substances; by letter dated June 2, 1998, respondent's attorney advised my Office of Counsel that Marcus returned to school on May 26, 1998.)

Petitioners appealed the determination to respondent board, which heard the matter on March 30. Respondent rendered a written decision upholding the superintendent's determination on April 3, 1998, and this appeal ensued. By letter dated May 19, 1998, I denied petitioners' request for a stay.

Petitioners argue that they were not given adequate notice of the potential penalties for the offense charged against their son. They further assert that the oral admission made by Marcus was made under improper duress and should be suppressed. They argue that there was no real proof that the material actually was marijuana and that the proof introduced at the hearing was legally insufficient. Finally, petitioners argue that the penalty imposed was excessive.

Petitioners argue that the school handbook does not provide adequate notice that possession of marijuana can result in a substantial suspension. However, on page 33, the handbook states that a "Class A" offense, including possession of drugs, can result in a superintendent's hearing. On the previous page, page 32, the handbook makes clear that the superintendent has the authority to take disciplinary action "up to the suspension of the student for the balance of the school year." I therefore find that the handbook provides adequate notice of the potential penalty for a student's possession of marijuana on school grounds.

Petitioners also object to the use of an oral admission made by their son, which they claim was obtained through duress, because they were not present when he made the statement. However, there is no requirement that a parent be present when a student is questioned by school personnel, and similar admissions have been accepted in previous Commissioner's decisions (Appeal of Pronti, 31 Ed Dept Rep 259; Matter of Roach, 19 id. 377). The record also lacks any specific proof of duress or intimidation on the part of any school official.

With respect to the proof necessary to sustain the finding of guilt, petitioners' son's oral statement is sufficient. In an administrative proceeding such as this, neither proof beyond a reasonable doubt nor corroboration is necessary. Petitioners' son was accused of possessing marijuana, and he admitted doing so. Such proof has been found sufficient in previous Commissioner's decisions (see, e.g., Appeal of Eddy, 36 Ed Dept Rep 359; Appeal of Pronti, supra; Matter of Roach, supra).

Finally, I do not find the penalty 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 was so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of Forestiero, 34 Ed Dept Rep 592; Appeal of Homick, 34 id. 150). I find that the penalty, although severe, is not irrational or unreasonable (Appeal of Uebel, 38 Ed Dept Rep 375; Appeal of Cynthia and Robert W., 37 id. 437; Appeal of Lutes, 25 id. 396), and is within respondent's discretion.

Finally, I have not considered the undated, unsworn statement of a New York State trooper who rendered an opinion that the material possessed by petitioners' son was in fact marijuana. The trooper did not testify at the hearing, nor was his statement introduced at that proceeding, and I have not considered it as part of the record before me.