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Decision No. 14,488

Appeal of LORI HARLAN, on behalf of ROBERT FARLEY, from action of the Board of Education of the Broadalbin-Perth Central School District regarding student discipline.

Decision No. 14,488

(November 30, 2000)

Robert J. Krzys, Esq. attorney for petitioner

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Gregg T. Johnson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Broadalbin-Perth Central School District ("respondent") affirming her son’s suspension. The appeal must be dismissed.

During the 1998-99 school year, petitioner’s son, Robert, was enrolled in the tenth grade in respondent’s district. At approximately 7:15 a.m. on December 3, 1998, Joseph Shannon, the assistant principal at respondent’s high school, noticed a commotion in the school cafeteria as he entered the building. Upon investigation, Mr. Shannon discovered that a book bag belonging to A.A. had been soaked with a substance later identified as "deer scent". Robert was one of several students near A.A. at the time.

Later that morning, A.A. was the object of further harassment. A.A.’s Biology teacher, David King, noticed A.A. by his locker looking anxious, with Robert and another student, K.B. nearby. A.A. complained that Robert and K.B. were harassing him, and showed King that someone had stuffed apples and deodorant through the vents of his locker. At that time, King noticed some slash marks on A.A.’s arm.

These incidents were reported to high school principal Margaret Blowers and prompted school officials to conduct an investigation that included interviews with a number of students. K.B. revealed that Robert had brought the deer scent to school, put it on A.A.’s bookbag and then thrown it under the heating vent in the cafeteria, where it was subsequently recovered by Blowers. Robert subsequently confirmed that he had brought the deer scent to school, and also admitted slashing A.A. on the arm with a plastic knife.

The investigation further revealed that these incidents were part of pattern of harassment against A.A. by members of an unauthorized student organization, lead by Robert, among others, called alternatively "N.W.O", "National World Order" or "New World Order". During the investigation, Robert admitted that the group’s intent was to "destroy [A.A.]" and identified several other students, including K.B. and G.G. as members.

A.A. revealed to Mr. Shannon that, although he had purportedly been admitted to N.W.O., he had not been permitted to see its rulebook. It appears from certain writings found in the group’s "rule book", which was recovered by Mr. Shannon from G.G., that A.A.’s ostensible acceptance by the group was part of the group’s plan to pretend to befriend A.A. to harm him. "Plan 3", which was signed by Robert under his code name, "Viper", was to "…pretend we are friends with [A.A.] for one or two weeks, then he comes over to Kevin’s house while me and Kevin are waiting and we beat the hell out of him!!" The group devised other plans that identified A.A. as the intended victim. Plan 1, signed by Robert, states "[w]e … are going to bring [A.A.] down … The object of this hole (sic) thing is to distroy (sic) [A.A.]". Other plans signed by Robert under his code name talk of "kill[ing]" A.A. and getting "rid of him". The rule book also contained a number of comic drawings, authored by Robert, involving disturbing sexual themes and drawings, depicting, among other things, A.A. having sex with a dog.

Based on the results of the investigation, Mrs. Blowers decided to suspend Robert for three days based on the deer scent incident. Mr. Shannon informed petitioner of this determination by telephone on December 3, 1998.

Pursuant to her request, petitioner met later that day with Mr. Shannon to discuss Robert’s suspension. During that meeting, Robert acknowledged his participation in the organization, and admitted authoring some of the material in the rule book. Pursuant to Mr. Shannon’s request, Robert emptied the contents of his book bag and wallet on Shannon’s desk revealing, among other things, Robert’s N.W.O. identification card reflecting his code name, Viper, and a variety of drawings and writings, a number of which contained violent and disturbing sexual themes.

By letter dated December 9, 1998, Harry F. Brooks, respondent’s superintendent of schools, informed petitioner and Robert that the district would conduct a superintendent’s hearing on December 11, 1998 at 9:30 a.m. to review misconduct charges against petitioner. The letter alleged that petitioner had been insubordinate and disorderly and had endangered the safety, morals, and/or welfare of others, and listed seven specifications. The first charged Robert with refusing in early November 1998 to disclose information to Joseph Shannon concerning the "New World Order". Charges two through five charged Robert with conduct that allegedly occurred on December 3, 1998, and included charges that Robert poured deer scent on A.A.’s book bag; used a plastic instrument to scratch other students including A.A.; soiled and defaced A.A.’s locker; and participated in conduct in the hallway that was harassing, degrading and intimidating to A.A. The sixth specification accused Robert of conspiring with other N.W.O. members since the end of October 1998, to, among other things, inflict bodily injury on A.A., advocate violence against district students and staff, create, publish and distribute materials that were profane, pornographic and/or sexually explicit. The seventh charge alleged that the behavior identified in charges one through six violated the district’s Code of Conduct. According to petitioner, five other N.W.O. members were also served with disciplinary charges stemming from their involvement in the group.

Petitioner’s disciplinary hearing took place over the course of two days. Among those who testified was B.S., a former member of the "N.W.O.", who testified, among other things, that although he initially understood that the group intended only to "undermine [A.A.’s] reputation", it became clear to him over time that the N.W.O. was "actually planning to hurt [A.A.]". B.S. identified Robert as one of the leaders of the group, and testified that he had seen Robert use a plastic knife to cut A.A. a number of times.

A.A. testified to a pattern of abuse inflicted upon him by Robert, as well as other N.W.O. members, from the period of October through Robert’s suspension on December 3, 1998. A.A. testified that Robert would punch him in the shoulder, as many as five or six times during lunch in the cafeteria and also scraped him with a plastic knife on five or six occasions, drawing blood. At least one of these incidents left A.A. with a scar on his arm. A.A. testified that he tried to join the group because he heard one of the members say that N.W.O. members could not strike each other.

On March 5, 1999, the hearing officer found insufficient evidence to support the charges involving the defacing of A.A.’s locker and the deer scent incident, but found Robert guilty of the remaining charges, and recommended a one-year suspension. By letter dated March 26, 1999, respondent’s superintendent of schools notified petitioner and Robert that he was adopting the hearing officer’s findings of fact and recommendations. Petitioner appealed, and a hearing was held before respondent on May 17, 1999. By letter dated May 20, 1999, Thomas Hart, respondent’s president, notified petitioner and Robert that, based on its careful review of the record, respondent would adopt superintendent Brook’s March 26, 1999 determination. This appeal ensued. Petitioner’s request for interim relief was denied on July 13, 1999.

Petitioner raises a variety of claims pertaining to the disciplinary proceeding, including that the hearing officer improperly admitted hearsay evidence; Robert was punished more severely than the other students charged because he chose to proceed to a hearing; the hearing officer improperly considered evidence that was unconstitutionally seized from Robert by Mr. Shannon; Robert was denied due process because the dates of the incidents listed in the notice of charges varied from the dates testified to at the hearing; the disciplinary notice lacked specificity; there was insufficient proof to sustain certain charges; the hearing officer improperly allowed one of Robert’s teachers to offer expert handwriting testimony; and the punishment imposed was disproportionate to the offenses charged. Petitioner also complains that the district has failed to provide Robert with proper alternative instruction and that the superintendent has failed to return her phone calls to discuss this matter. For relief, petitioner requests that Robert be permitted to "return to the student body …".

Respondent denies any wrongdoing and contends that the hearing officer’s determination was supported by substantial evidence presented at a fair hearing that fully satisfied the requirements of Education Law "3214. Respondent also asserts that the petitioner’s claims are moot and that Robert is not entitled to alternative instruction because he is no longer of compulsory school age.

The appeal must be dismissed as moot. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Morenus, 39 Ed Dept Rep 33, Decision No. 14,165). For relief, petitioner essentially seeks an order reinstating Robert to school. Because Robert has already served the one-year suspension, the relief requested can no longer be granted. For the same reason, the appeal is also moot to the extent that petitioner requests relief on her claim that respondent has failed to provide Robert with an adequate alternative education during the suspension period (Appeal of Camille S., 39 Ed Dept Rep 574, Decision No. 14,316).

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits. The Court of Appeals has stated that the charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing." (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133). "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." (Id.) Significantly, the Court of Appeals recognized in Monticello that although student disciplinary hearings are serious and adversarial in nature, students are not entitled to the protections of a criminal trial (Board of Education of Monticello Central School District v. Commissioner of Education, supra). Measured against the Monticello standard, the notice of discipline in this case was more than sufficient.

I also find substantial evidence in the record to support both the hearing officer’s findings of fact and the penalty imposed. A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Board of Education of Monticello Central School District v. Commissioner of Education, supra; Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241; Appeal of Uebel, 38 id. 375, Decision No. 14,058). A hearing officer may draw reasonable inferences if the record supports the inference (Board of Education of Monticello Central School District v. Commissioner of Education, supra; Appeal of Aldith L., supra; Appeal of Uebel, supra). In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Aldith L., supra; Appeal of Uebel, supra). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board (Appeal of Aldith L., supra; Appeal of Uebel, supra).

The record reflects that Robert was one of the founding leaders of an organization whose admitted purpose was to "destroy A.A.". Robert, along with other members of the N.W.O., engaged in a systematic pattern of harassment and intimidation, that included cutting A.A. with plastic knives, resulting in multiple cuts. Further, as noted by the hearing officer, the organization's rule book and other documents obtained from Robert’s book bag contained "a truly frightening array of pornographic and sadistic drawings, cartoons, essays and other writings", some of which portray A.A. as a victim. In short, the record revealed that Robert engaged in a disturbing pattern of harassment and intimidation of A.A. that amply justifies the penalty imposed.

In light of this disposition, I decline to address the parties’ remaining contentions. I note, however, that such harassment of students by their peers cannot be tolerated, and I commend respondent for acting to protect A.A. and for A.A.'s courage in coming forward to testify. School

buildings must be safe and harassment free in order for students to learn.