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Decision No. 14,585

Appeal of C.Z., on behalf of his son A.Z., from action of the Board of Education of the New Paltz Central School District regarding student discipline.

Decision No. 14,585

(June 19, 2001)

Kossover Law Offices, LLP, attorneys for petitioner, Andrew Kossover, Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the New Paltz Central School District ("respondent") to suspend his son. The appeal must be dismissed.

On June 15, 2000, a superintendent"s hearing was held in accordance with Education Law "3214 to determine whether petitioner"s son would be suspended for a period in excess of five school days in response to allegations that on June 5, 2000, he had been observed writing a bomb threat on a cafeteria table. Petitioner"s son was charged with conduct endangering himself and/or others, disruptive behavior and insubordination.

Testimony taken at the hearing revealed conflicting accounts of petitioner"s son"s involvement in the incident. Two students, V.V. and V.S., who were seated together at a cafeteria table behind petitioner"s son"s table, testified that they saw him with a pen in his hand, although neither student saw what he was writing. Both V.V. and V.S. stated that when they got up to throw their lunches away, they walked by petitioner"s son"s table and did not see anything written on the table at that time. However, after returning to her table, V.V. indicated that she observed petitioner"s son and stated that "it looked like he was bolding something, but I didn"t see what he was bolding." V.S. stated that when she walked past petitioner"s son"s table after throwing her lunch away, she saw petitioner"s son holding a pen and heard another student seated at the table making bomb and gun noises. Shortly thereafter, the writing on the cafeteria table was discovered and the school was evacuated.

Petitioner"s son denied writing the bomb threat. Petitioner"s son also testified that he did not have a pen in his hand while in the cafeteria that day and did not leave any mark either on a paper or the table while having lunch. Two other students who were sitting at the table with petitioner"s son also denied that petitioner"s son wrote the threat. The student accused of making bomb and gun noises denied doing so.

After hearing this and additional testimony from a teacher and the middle school principal, respondent"s superintendent found petitioner"s son guilty of the charges and imposed a one-month suspension. Petitioner was notified of this determination by letter dated June 20, 2000. Petitioner appealed the superintendent"s decision to respondent, and by letter dated October 24, 2000, the president of respondent board notified petitioner of the board"s October 18, 2000 decision upholding the superintendent"s determination. This appeal ensued.

Petitioner contends that the superintendent"s findings were not supported by proof at the hearing. Petitioner seeks a reversal of the superintendent"s decision and the expungement of any district records relating to the decision against his son. Respondent asserts that the petition is untimely and that petitioner has failed to demonstrate a clear legal right to the relief requested.

Initially, I must address the issue of timeliness. An appeal to the Commissioner must be initiated within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Pierre, 40 Ed Dept Rep ___, Decision No. 14,551). Petitioner received respondent"s decision to uphold the superintendent"s determination on October 27, 2000 and commenced this appeal on November 27, 2000. As such, I find this appeal timely.

This appeal must, however, be dismissed on the merits. The decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student actually participated in the objectionable conduct (Board of Education ofMonticello Central School District v. Commissioner ofEducation, 91 NY2d 133; Appeal of D.D., 40 Ed Dept Rep ___, Decision No. 14,567; Appeal of a Student Suspected of Having a Disability, 40 id. ___, Decision No. 14,464, aff"d Sup. Ct. Albany Co. [Keegan, J.] November 3, 2000). It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts in the record (Appeal of D.D., supra; Appeal of a Student with a Disability, 40 Ed Dept Rep ___, Decision No. 14,426; Appeal of Bowen, 35 id. 136, Decision No. 13,491). In this case, conflicting testimony of petitioner"s son and two students raised questions of credibility. After hearing the testimony and observing the demeanor of the witnesses, the superintendent determined that petitioner"s son had engaged in the charged conduct. Since this determination had an adequate basis in the record before me, I shall not substitute my judgment for that of the superintendent as to the students" credibility. Moreover, although largely circumstantial, the testimony presented at the hearing allowed the superintendent to draw a reasonable inference that petitioner"s son was responsible for writing the bomb threat on the cafeteria table (Appeal of David and CynthiaL., 40 Ed Dept Rep ___, Decision No. 14,484; Appeal of aStudent with a Disability, 39 id. 427, Decision No. 14,278). V.V. and V.S. testified that when they initially walked past petitioner's son"s table, nothing was written on the table. Upon returning to their table, they saw petitioner"s son with a pen in his hand and V.V. stated that she saw him "bolding," i.e., writing on the table. Soon after V.V. and V.S. made their observations, the writing on the cafeteria table was discovered and the school was evacuated. Accordingly, on the record before me,

I find that the district"s suspension of petitioner"s son was not arbitrary or capricious.