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Decision No. 14,322

Appeal of J.D., on behalf of his son, from action of the Board of Education of the Bethlehem Central School District regarding student discipline.

Decision No. 14,322

(March 13, 2000)

Friedman and Manning, P.C., attorneys for petitioner, Stephen L. Molinsek, Esq., of counsel

Kaplowitz, Murphy, Runion, Fritts & Whiting, attorneys for respondent, Roger M. Fritts, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his son ("J.D.") by the Board of Education of the Bethlehem Central School District ("respondent"). The appeal must be dismissed.

Petitioner's son, J.D., attended eighth grade at respondent's middle school in June 1997. On June 19, 1997, J.D. and another student arranged to meet a third student on school grounds on June 20, 1997 for the purpose of purchasing a handgun. On June 20, 1997, the students met in a middle school bathroom. J.D. and his co-purchaser each paid $20.00 to the student selling the gun. At that time, the seller took the money and gave the gun and a box of ammunition to J.D. and his co-purchaser, placing the gun and ammunition in the co-purchaser's knapsack. The students kept the gun and ammunition in school for the remainder of the day.

On June 23, 1997, respondent's principal questioned J.D., who admitted purchasing the handgun at school on June 20, 1997. Respondent's principal suspended J.D. for five days and notified petitioner of the suspension. Respondent's principal additionally indicated that a superintendent's hearing would be held. By letter dated July 7, 1997, respondent's superintendent notified petitioner that a superintendent's hearing was scheduled for July 10, 1997 "to consider District action for [J.D.'s] purchase of a handgun at school June 20, 1997."

The hearing was held on July 10, attended by petitioner, J.D., and Reverend Warren Winterhoff on the student's behalf. By letter dated July 16, 1997, respondent's superintendent notified petitioner that he was suspending J.D. from school for the 1997-98 school year for possession of a gun on school grounds on June 20, 1997. The letter further indicated that the one-year suspension "is consistent with the Gun Free Schools Act of 1994, and with School District policy which parallels the Federal legislation."

Petitioner commenced this appeal on August 8, 1997. On August 20, 1997, petitioner's request for a stay was denied. Petitioner served an amended petition on October 1, 1997 which indicated that petitioner had appealed the superintendent's decision to respondent board and, by letter dated September 11, 1997, respondent affirmed the superintendent's decision. Petitioner's amended petition challenged respondent's decision affirming his son's suspension.

Petitioner contends that respondent violated his son's right to due process and a fair hearing pursuant to Education Law "3214 and that the penalty of suspension for one year is unwarranted. Respondent asserts that petitioner's son was afforded all the due process to which he is entitled, and that the penalty imposed is reasonable under the circumstances.

First, petitioner asserts that he was not given sufficient notice of the July 10 superintendent's hearing to consult with and secure counsel. He contends that, therefore, respondent violated his son's due process rights under Education Law "3214. Education Law "3214 provides for a fair hearing, upon reasonable notice. The record indicates that, by letter dated July 7, respondent's superintendent notified petitioner of the July 10 superintendent's hearing, but petitioner did not receive the letter until July 8. The record also indicates that respondent's middle school principal informed petitioner in a telephone conversation on June 23 that a superintendent's hearing would be held regarding his son's misconduct. The requirements of adequate notice vary in proportion to the circumstances of the event (Appeal of Harkola, 38 Ed Dept Rep 769, Decision No. 14,139; Appeal of Alexander, 36 id. 160, Decision No. 13, 689). While petitioner claims not to have received the superintendent's July 7 notice until July 8, respondent alleges that, on June 23, its principal informed petitioner that a superintendent's hearing would be scheduled. Petitioner did not submit a reply and does not otherwise contravene respondent's assertion. I find, therefore, that petitioner had adequate time to secure counsel (Appeal of Harkola, supra; Appeal of Lago, 38 Ed Dept Rep 723, Decision No. 14,126; Appeal of Alexander, supra). Moreover, I note that, at the July 10 hearing, petitioner did not object to the notice, nor did he request an adjournment of the hearing so as to obtain counsel (see, Appeal of DeRosa, 36 Ed Dept Rep 336, Decision No. 13, 741).

Petitioner also claims that the July 7 written notice failed to apprise his son of his right to attend the hearing, present or cross-examine witnesses or obtain counsel. The superintendent's July 7 notice to petitioner states:

I am inviting you to attend the hearing; please bring [J.D.] with you. If you wish, you are entitled to be represented by counsel at this hearing and there will be an opportunity for questioning those involved in the case.

Although not formally stated, the notice does, in fact, apprise petitioner that his son may attend the hearing. Indeed, it directs petitioner to bring J.D. Petitioner was also informed of his right to counsel and to cross-examination. Although the notice does not indicate that petitioner has the right to present witnesses, the written record of the superintendent's hearing indicates that petitioner did, in fact, present the Reverend Warren Winterhoff as a witness who testified on J.D.'s behalf. Therefore, while I caution respondent to ensure that, in the future, notice of a superintendent's hearing specifically include a statement of a student's right under Education Law "3214(3)(c) to present witnesses and other evidence on the student’s behalf, in this instance the omission does not provide a basis for annulling the hearing.

Petitioner also challenges the adequacy of the notice of the charge and potential penalties that might be imposed. What constitutes "reasonable notice" will vary with the circumstances of each case (Bd. of Educ., Monticello Central School District v. Commissioner of Education, 91 NY2d 133). The charges need only be sufficiently specific to advise the student and counsel of the activities or incidents which have given rise to the proceedings and which will form the basis of the hearing (Application of R. S., 38 Ed Dept Rep 419, Decision No. 14,065; Appeal of Pinckney, 37 id. 284, Decision No. 13,860). Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings. As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. Monticello Central School District, supra).

Upon my examination of the record, I find petitioner's son was provided sufficiently specific notice to enable the student to prepare and present an adequate defense. The July 7 notice of the superintendent's hearing states that a superintendent's hearing would be conducted on a specified date "to consider district action" against the student based upon the student's purchase of a handgun at school on June 20, 1997. The letter subsequently indicates that, if petitioner and his son did not attend the hearing, the superintendent would make a decision "regarding [J.D’s] continuing enrollment in the Bethlehem Central School District." Moreover, the record indicates that respondent's student discipline code apprises students that, "[p]ossession, use, transfer of lethal weapons on school property or at school sponsored activities" may result in expulsion or suspension. Petitioner does not assert that his son was unaware of the student discipline code. Upon the record before me, I find that petitioner's son was fairly apprised of the nature of the charge against him and the possible penalty that could be imposed so as to enable him to prepare an adequate defense and present his side of the story (see, Appeal of Pinckney, supra; Application of R.S., supra).

Petitioner's remaining contentions concern the findings made with regard to the charge against his son and the penalty imposed. Petitioner does not contest that his son purchased the handgun at school. At the hearing, J.D. admitted that he did so. However, petitioner contends that his son's purchase of a handgun on school grounds does not constitute "possession" of a weapon, as his son did not take physical custody of the purchased handgun. Petitioner claims that, therefore, respondent erred in finding his son guilty of possession of a weapon on school grounds and imposing a penalty of one-year suspension therefor. Petitioner offers no legal basis for his position and, indeed, no such precedent exists.

Absent evidence that respondent erred as a matter of law in its conclusion, my review is limited to whether respondent's determination is reasonable based on the record. Upon review of the facts presented, I find no basis to substitute my judgment for that of respondent. Petitioner's son admitted that he and a friend arranged to meet another student in a bathroom at respondent's middle school for the sole purpose of purchasing a handgun. He met the seller, paid his half of the purchase price of the gun and knowingly took ownership of the handgun at that time. In his presence, the gun that he had just purchased was placed in his co-purchaser's knapsack by the seller. J.D. knowingly took part in the purchase, transfer and harboring of the gun on school property. It is disingenuous under these circumstances to argue that, because he did not personally handle the gun he had just purchased, he is insulated from punishment. Based on these facts, I find no basis to substitute my judgment for that of respondent.

With respect to the penalty imposed, petitioner argues that suspension for one year is not warranted. First, petitioner claims that respondent erred in concluding that a suspension for one year was mandated in this instance by the Gun Free Schools Act. Petitioner claims that the Act applies only to students determined to have "brought" a weapon to school and that his son did not "bring" the purchased gun to the middle school. Even if petitioner is correct with respect to the applicability of the Gun Free Schools Act, such is not dispositive of this appeal, as neither respondent nor its superintendent based the imposition of the one-year suspension solely upon the provisions of the Act. The record indicates that, at the hearing, respondent's superintendent stated that respondent's student discipline policy authorizes such suspension for possession of a weapon on school property. Similarly, respondent's September 11, 1997 decision affirming the superintendent's actions relies on the student discipline code. Review of the student discipline code indicates that the penalty for possession of a weapon on school property includes suspension or expulsion. Moreover, prior to determining that suspension for one year was warranted in this instance, respondent's superintendent considered mitigating factors such as J.D.'s prior record as against the severity of the misconduct. Therefore, even if suspension for one year is not required herein pursuant to the federal Gun Free Schools Act, such was authorized by respondent's student discipline policy. As noted above, petitioner offers no evidence that his son was unaware of the student discipline code setting forth the possible penalties for his misconduct.

Finally, petitioner challenges the severity of the penalty imposed. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved, and the test to be applied in revising 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., et al., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Alexander, supra). I find that the penalty imposed on petitioner's son is not so clearly excessive as to warrant my substitution of a lesser penalty. In determining that suspension for one year was warranted in this instance, respondent and its superintendent considered the gravity of the offense, school safety, and the deliberateness of J.D.'s misconduct in arranging to purchase, purchasing and keeping the handgun at school. As recent tragic incidents of violence in our nation’s schools have proven, the possession by students of weapons in school is a manifest danger that cannot be tolerated under any circumstances, and rules prohibiting such weapons possession should be strictly enforced (Application of R.S., supra; Appeal of John T., 30 Ed Dept Rep 1, Decision No. 12,370). J. D.'s conduct was serious and dangerous, and it must be impressed upon him that such conduct will not be tolerated.

I have considered petitioner's remaining claims and find them to be without merit.