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Decision No. 14,389

Appeal of JOHN ORMAN, on behalf of his son, CHRISTOPHER, from action of the Board of Education of the Avon Central School District regarding student discipline.

Decision No. 14,389

(June 16, 2000)

Fero, Pilato & Ingersoll, Esqs., attorneys for petitioner, Timothy E. Ingersoll, Esq., of counsel

Harris, Beach & Wilcox, LLP, attorneys for respondent, James A. Spitz, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his son by the Board of Education of the Avon Central School District ("respondent") from September 1999 until the end of the 1999-2000 school year and his exclusion from graduation exercises on June 24, 2000. The appeal must be dismissed.

In September 1999, petitioner’s son, Christopher, was a senior at Avon High School, and a member of the varsity football team. Beginning on September 8, Christopher was involved in several incidents involving the possession and use of a BB pistol. He was suspended from school on September 17, and a hearing was held pursuant to Education Law "3214 on September 22, 1999.

Testimony at the hearing established that on September 14, 1999, Christopher was driving a car on Clinton Street in Avon, when his passenger, Chuck Vandenburg, discharged a BB pistol at three junior varsity football players walking along the street, striking one of them, Luke Hine, in the back of his leg. Another student, T. J. Vontlis, testified that earlier on the same day, he was driving his car when Christopher drove past him and discharged a BB pistol at him, with pellets striking his car. He also testified that Christopher chased him in his car at speeds well above the legal limit following this incident. There was also testimony that Christopher admitted possessing a BB pistol at a weekly dinner for football players and their families on September 8, 1999.

The hearing officer found that Christopher had participated in all three of these incidents. On September 28, 1999, respondent’s superintendent adopted the hearing officer’s findings, and suspended Christopher from school through June 23, 2000. He further excluded him from commencement exercises on June 24, 2000.

Respondent met on November 8, 1999, and affirmed the superintendent’s determination. Respondent’s president wrote to petitioner’s attorney on November 9, 1999, and advised him of respondent’s action. This appeal was commenced November 19, 1999, and petitioner’s application for interim relief was denied on December 2, 1999.

Petitioner claims that respondent failed to consider that none of the conduct complained of took place on school property, that there was no actual physical injury sustained, and that no anecdotal evidence was submitted that would justify the penalty imposed. Although the petition form claims that petitioner’s son was deprived of a fair hearing, it is clear that petitioner only seeks a review of the penalty imposed. Indeed, in petitioner’s appeal to respondent, petitioner’s attorney stated: "No one is denying that Chris should be suspended." He also stated: "I have spoken to Chris and his parents on this issue and we all agree that a suspension is warranted ..."

I decline to substitute my judgment for that of respondent on penalty. Where the severity of a penalty is at issue, the proper review standard is whether the penalty imposed is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of Joseph F., 39 Ed Dept Rep 242, Decision No. 14,226; Appeal of B.B., 38 id. 666, Decision No. 14,113; Appeal of Forestiero, 34 id. 592, Decision No. 13,419).

I do not find the penalty imposed by respondent inappropriate. The record shows that Christopher was a willing participant in two incidents involving the intentional discharge of a BB pistol at other students. Although petitioner argues that no physical harm resulted from such actions, the potential for harm was very great, and cannot be discounted (Appeal of McNamara, 37 Ed Dept Rep 326, at pp. 328-329, Decision No. 13,871). The incident in which Christopher discharged the pistol at another student driving a car was obviously extremely dangerous. The student could have lost an eye in the process, and could have lost control of his car and caused serious injury to himself, his passengers, and other motorists. In other cases involving the mere possession of such a pistol, long suspensions have been upheld even though the pistol was not actually discharged (Appeal of Forestiero, supra, suspension of more than a year and a half upheld; Appeal of Blake, 37 Ed Dept Rep 250, Decision No. 13,852, suspension of approximately one-half year upheld). The penalty of suspension for the remainder of the school year in this case is well within respondent’s discretion and I will not disturb it.