Decision No. 14,370

(May 19, 2000)

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Clarence Central School District ("respondent") to suspend their son from the Clarence Middle School, and the proposed change of his placement for the 1999-2000 school year. The appeal must be sustained in part.

On April 21, 1999, petitioners’ son, Nicholas, was a student at Clarence Middle School. During the course of the day, Nicholas made comments to other students to the effect that he intended to bring a weapon to school to kill certain named fellow students. He was suspended on April 22, 1999, and a hearing pursuant to Education Law "3214 was held on April 29. At the close of the hearing, the superintendent found Nicholas guilty of insubordination and conduct endangering the morals, safety, health, and welfare of others; and provided for his evaluation by a physician. After reviewing a medical evaluation by Dr. Brian Joseph, M.D., by a letter dated May 20, 1999, the superintendent confirmed Nicholas’ guilt of the charges and suspended him through the end of the 1998-1999 school year. The superintendent’s letter also indicated that he was planning to move Nicholas to the Erie I BOCES Middle School for the 1999-2000 school year.

On July 12, 1999, respondent considered petitioners’ appeal, and by letter dated July 21, 1999, respondent’s president advised petitioners that the superintendent’s determination was affirmed. This appeal was commenced August 20, 1999. The petition, in addition to challenging the disciplinary measures, also sought a stay preventing the transfer of petitioners' son to the BOCES Middle School. After my Office of Counsel determined that Nicholas had not actually been transferred, and that he was still enrolled at the Clarence Middle School on September 8, 1999, I denied the stay on September 9 as unnecessary. I now find that the determination of the superintendent and respondent must be annulled because of significant problems of proof and because of an error that undermined the fundamental fairness of the hearing.

With respect to the proof issue, the evidence was, at best, equivocal. Although there is some evidence in the record indicating that Nicholas made the threats with which he is charged, there is also evidence that he was only joking, and that at least some of the students who heard the threats believed he was only joking. In addition, a social worker was allowed to testify about an incident that allegedly occurred on a camping trip when Nicholas was in elementary school. This testimony was totally irrelevant to the hearing, and clearly prejudicial.

Furthermore, no one testified who actually heard what Nicholas said. Several written statements obtained from students were admitted, about half of which indicated that Nicholas was apparently joking. One statement that was admitted indicated clearly that the six students who signed it did not actually hear Nicholas say anything. Another statement related to a completely different incident that allegedly occurred many months earlier, but it, too, was admitted. Further, Nicholas was not present when these statements were put into evidence, and apparently did not have the opportunity to see or dispute them at any time.

The transcript of the hearing indicates very clearly that the student’s anecdotal record, which was significant, was introduced into the hearing record prior to any determination of guilt or innocence by the superintendent, who conducted the hearing. This is clearly improper (Appeal of a Student Suspected of Having a Disability, 35 Ed Dept Rep 492, Decision No. 13,610; Appeal of Johnson, 34 id. 62, Decision No. 13,234; Matter of Cousins, 10 id. 245, Decision No. 8,299). Under these circumstances, where proof of guilt was certainly not convincing, the premature introduction of Nicholas’ anecdotal record was seriously prejudicial (cf., Appeal of Norwood, 31 Ed Dept Rep 464, Decision No. 12,701), and, especially in light of the other serious procedural and evidentiary deficiencies, requires that the determination be annulled and expunged from the student’s record.

With respect to the remaining portion of the petition which deals with a proposed involuntary transfer, the petition must be dismissed as premature. At the time the appeal was commenced and immediately thereafter, there was an indication that respondent intended to commence a hearing pursuant to Education Law "3214(5) in order to effect an involuntary transfer of petitioners’ son to the Erie I BOCES Middle School. However, no further information has been provided to me, and I must presume that Nicholas is still enrolled at the Clarence Middle School. I, therefore, dismiss that portion of the petition dealing with a proposed involuntary transfer as premature, and without prejudice.

Although I have sustained this appeal in part, this decision should not be construed as condoning the student’s behavior in this matter. Violence and threats of violence, even if intended as jokes, have no place in our schools, and I fully support the reasonable and determined efforts of school district officials to deal with them in a firm manner. In this case, I am constrained to sustain the appeal because the manner in which the disciplinary hearing was conducted was seriously prejudicial to the student’s rights.

Students should be aware that remarks that could be perceived as threats can have far-reaching negative consequences, generating fear, panic, and emotional distress in others, and may lead to disciplinary action in a proper case.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the disciplinary actions and determinations of the superintendent and respondent are hereby reversed, and

IT IS FURTHER ORDERED that the penalty imposed be expunged from petitioners’ son’s educational records.

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