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Decision No. 14,342

Appeal of ELIYAHU E. WOLFE from action of the Board of Education of the Niskayuna Central School District regarding student discipline.

Decision No. 14,342

(April 25, 2000)

The Nicholas D. Morsillo Law Firm, attorneys for petitioner, Nicholas D. Morsillo, Esq., of counsel,

Higgins, Roberts, Beyerl & Coan, P.C., attorneys for respondent, Michael E. Basile, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Niskayuna Central School District ("respondent") affirming his five-day suspension. The appeal must be dismissed.

Petitioner is a 16 year-old junior at Niskayuna High School. He states that during his American history class on the morning of December 22, 1999, he saw a group of students walking through the halls chanting "walkout." Petitioner states that he requested permission from his teacher to leave class, whereupon the teacher allegedly responded by telling him to "do the right thing." Petitioner interpreted this statement as granting him permission to leave class, which he did, joining approximately 20-30 demonstrators outside at 8:55 a.m.

Shortly thereafter, Principal Edward A. Carangelo came out of the building. At this point, the parties disagree on the facts. Mr. Carangelo avers that he twice told the students to return to class or risk being suspended for five days for insubordination. When no one returned to the building, Mr. Carangelo avers that he instructed the students to leave the campus immediately or they would be arrested for trespassing. Petitioner asserts that Mr. Carangelo announced that if the students re-entered the building, they would be arrested for trespassing, and that he gave them five minutes to leave school grounds or be arrested. Petitioner asserts that he left school grounds at 9:00 a.m. as directed because Mr. Carangelo did not offer students the alternative of re-entering the building.

By letter dated December 22, 1999, Mr. Carangelo suspended petitioner for five days, from Wednesday, December 22, 1999, through Wednesday, January 5, 2000, and assigned petitioner to restricted study hall for five weeks. Petitioner was charged with "conduct detrimental to the educational process, endangering the safety of others, and insubordinate conduct." On January 10, 2000, petitioner appealed Mr. Carangelo’s decision to respondent. On January 11, 2000, Mr. Carangelo sent a revised suspension letter charging petitioner only with gross insubordination and removing the study hall restriction. Respondent upheld the suspension on January 25, 2000. This appeal ensued.

Petitioner claims that his due process rights under Education Law "3214 were violated. He requests that the finding of gross insubordination be set aside and the suspension expunged from his record. Respondent requests that the petition be dismissed for failure to state a claim upon which relief may be granted and because petitioner admitted engaging in the charged conduct.

Preliminarily, petitioner submitted a supplemental memorandum of law on March 28, 2000. Section 276.4 of the Commissioner's regulations states that reply memoranda are accepted only with the prior approval of the Commissioner. Section 276.4 further provides that the Commissioner may permit the late filing of memoranda of law upon written application by a party, setting forth good cause for the delay and demonstrating the necessity of such memoranda to the determination of the appeal. Petitioner has not fulfilled these requirements. Accordingly, I have not considered his late filing.

Additionally, I note that petitioner brings this appeal on his own behalf, but states in the petition that he is 16 years old. A person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law "310 (Appeal of Ground, 39 Ed Dept Rep ___, Decision No. 14,272; Appeal of Reynolds, 37 id. 58, Decision No. 13,803). Because petitioner is not 18 years of age, the appeal cannot be maintained and must be dismissed.

Even if the appeal were properly before me, it would be dismissed on the merits. Petitioner makes a general claim that his due process rights under Education Law "3214 were violated. However, in suspending petitioner for five days, Mr. Carangelo appropriately provided written notice to petitioner’s parents and advised them of their right to request an immediate informal conference with him in accordance with Education Law "3214(3)(d) and 8 NYCRR "100.2(l)(4). Petitioner was also permitted to appeal the principal’s decision to respondent. In an appeal before the Commissioner, petitioner bears the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of Robert D. and Barbara D., 38 Ed Dept Rep 18, Decision No. 13,975). Here, petitioner has failed to demonstrate that his due process rights were violated in any way.

Petitioner admits that he left the classroom, joined the demonstrators, and failed to return to the classroom. Although he asserts that his teacher’s statement to "do the right thing" granted him permission to join the walkout, I disagree that such a generalized statement constitutes permission, especially since the record indicates that faculty and staff had been advised in advance of the walkout and the consequences of student participation. Moreover, the record indicates that petitioner could have avoided suspension had he returned to his classroom instead of leaving school grounds. While petitioner disputes that he was given this opportunity, he has failed to sustain his burden of proof in light of Mr. Carangelo’s sworn affidavit.

I have considered petitioner’s remaining arguments and find them without merit.