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Decision No. 14,426

Appeal of A STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Rockville Centre Union Free School District regarding student discipline.

Decision No. 14,426

(August 4,2000)

Louis J. Milone, Jr., P.C., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Mary Anne Sadowsky, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the suspension of their son from school by the Board of Education of the Rockville Centre Union Free School District ("respondent"). The appeal must be dismissed.

During the 1998-1999 school year, petitioners’ son attended the ninth grade at respondent’s South Side High School and was classified as a student with a learning disability by respondent’s committee on special education (CSE). On the morning of May 17, 1999, petitioners’ son was brought to the principal’s office because it was reported that he smelled of marijuana. Upon the principal’s request, the student emptied the contents of his pockets. The principal inspected these items as well as the student’s wallet and book bag. The principal found cigarette rolling papers, a razor blade, many small plastic bags, three of which had small amounts of a substance suspected to be marijuana, and the remnants of a marijuana cigarette commonly known as a "roach." When questioned by the principal, petitioners’ son admitted ownership of the plastic bags and that they contained marijuana but denied smoking marijuana in school. The student was suspended for five days and a superintendent’s hearing was scheduled.

A hearing was held on June 7, 1999 and petitioners’ son was found guilty of charges that he was disorderly and conducted himself in such a manner as to endanger the health, safety and welfare of others by possessing a razor blade, marijuana, and drug paraphernalia while on school property. The hearing was adjourned to allow the CSE to determine whether the student’s conduct was a manifestation of his learning disability. When the hearing reconvened, the CSE chairperson testified that the CSE found no manifestation or nexus between the student’s disability and his conduct on May 17. By letter dated June 9, 1999, the superintendent informed petitioners that their son was suspended for the remainder of the 1998-1999 school year and until December of the 1999-2000 school year. Respondent denied petitioners’ appeal of the suspension on August 26, 1999. After meeting with school district authorities, the student was subsequently permitted to return to school on probation for the commencement of the 1999-2000 school year.

Petitioners commenced this appeal seeking an order overturning respondent’s decision to suspend their son and expunging the suspension from his school records. In the alternative, petitioners request that I declare the punishment to be excessive and substitute my judgment in imposing a penalty.

Petitioners contend that respondent failed to prove the charges against their son by competent and substantial evidence. Petitioners acknowledge that the student handbook prohibits possession of weapons or any other contraband on school property, but contend that the single- edged razor in their son’s possession should not be considered a weapon. Petitioners argue that possession of the razor blade is not a crime under the Penal Law, that the razor blade could readily be purchased over the counter in any convenience store or supermarket and that the razor blade was not adapted for use as a "box cutter" or similar type of weapon.

With regard to the charge of marijuana possession, petitioners contend that the principal’s testimony was unsubstantiated. Petitioners argue that the principal is not an expert in determining what, if any, substance is an illicit drug. Petitioners argue that a criminal complaint would have been filed by respondent against their son if the substance were marijuana.

Petitioners contend that the charge of possession of drug paraphernalia was not proved. Petitioners contend that the testimony at the hearing merely showed that their son was, in fact, in possession of certain commercially available plastic bags and cigarette rolling paper. Because respondent’s student handbook does not define the term drug paraphernalia, petitioners contend that the cigarette rolling paper and plastic bags in their son’s possession do not fall within that category because they are not included in the definition of drug paraphernalia in the Penal Law or General Business Law.

Petitioners also contend that the penalty imposed by respondent is excessive because their son has no record of prior disciplinary problems.

Respondent contends that the decision to suspend petitioners’ son is based on competent and substantial evidence, including detailed testimony by the principal.

Respondent argues that petitioners’ son admitted owning the razor blade found in his possession on school grounds and that the student handbook includes razor blades in its prohibition of weapons.

With regard to the charge of possessing drug paraphernalia, respondent contends that petitioners’ son admitted that the plastic bags in his possession were for holding marijuana and that three of the bags actually contained marijuana.

Respondent also contends that petitioners’ son admitted possessing marijuana on school grounds. Respondent argues that the suspension imposed is justified despite the student’s minimal disciplinary record because possession of marijuana and a razor blade are egregious infractions and either, standing alone, would warrant the penalty of suspension from June through December, 1999.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Holt-Silvin, 39 Ed Dept Rep 319, Decision No. 14,249; Appeal of Shelli, 37 id. 725, Decision No. 13,968; Appeal of Osoris, 36 id. 330, Decision No. 13,739). Evidence in this case was provided at the hearing by the principal, who testified that petitioners’ son smelled of marijuana on May 17, 1999 and admitted ownership of the razor blade, partially burned marijuana cigarette, rolling papers, and plastic bags in his possession. According to the principal’s testimony, when asked what was in the plastic bags, the student answered "marijuana." The principal identified physical evidence introduced at the hearing, including the razor blade, plastic bags, rolling papers and a police receipt for three plastic bags containing marijuana and one partially burned marijuana cigarette. Petitioners produced no witnesses and introduced no evidence to refute the principal’s testimony. It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts or the record (Appeal of Bowen, 35 Ed Dept Rep 136, Decision No. 13,491; Appeal of Kittell, 31 id. 419, Decision No. 12,686). Based on the record before me, I find no reason to substitute my judgment for that of the hearing officer as to the credibility of the principal who testified at the hearing.

Petitioners’ contention that the razor blade is not a weapon is without merit as evidenced by the language in respondent’s student handbook. Under "Possession of Weapons," it states: "Examples of such items include but are not limited to: knives of any size, chains, pipes, martial arts paraphernalia, etc." I find that respondent could reasonably include a razor blade in that definition.

I find that petitioners’ contention that the cigarette rolling papers and plastic bags are not drug paraphernalia is likewise without merit based, in part, upon statements made by their son to the principal. The principal testified that petitioners’ son told him the plastic bags "were for holding marijuana" and that some of the bags contained marijuana. The principal also identified rolling papers as drug paraphernalia and testified that he confiscated a partially burned marijuana cigarette from petitioners’ son.

I also find that respondent based its decision on competent and substantial evidence regarding the charge of marijuana possession. At the hearing, the principal testified that petitioners’ son smelled of and admitted possessing marijuana. The principal also testified of his own familiarity with and ability to identify marijuana.

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 Joseph F., 39 Ed Dept Rep 242, Decision No. 14,226; Appeal of Hyde, 38 id. 719, Decision No. 14,125; Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689). 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 B.B., 38 Ed Dept Rep 666, Decision No. 14,113; Appeal of Forestiero, 34 Ed Dept Rep 592, Decision No. 13,419; Appeal of Homick, 34 id. 150, Decision No. 13,265). I find that the penalty, although severe, is not irrational or unreasonable (Appeal of Uebel, 38 Ed Dept Rep 375, Decision No. 14,058; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899; Appeal of Lutes, 25 id. 396, Decision No. 11,624), and is within respondent’s discretion.