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Decision No. 14,678

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parents, from action of the Board of Education of the Somers Central School District relating to student discipline.


Decision No. 14,678


(January 25, 2002)

Harold, Salant, Strassfield & Spielberg, attorneys for petitioners, James G. Dibbini, Esq., of counsel


Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal their son"s suspension from school by the Board of Education of the Somers Central School District ("respondent"). The appeal must be dismissed.

Petitioners" son attended the seventh grade at respondent"s Somers Middle School during the 1999-2000 school year. On October 20, 2000, a document containing a list of fellow students and staff fell out of petitioners" son"s book bag while he was on the school bus and was seen by another student. Petitioners" son told the student that it was a list of people he intended to kill when he turns 21. Information regarding this incident was reported to district personnel and resulted in respondent's principal scheduling a conference with petitioners to discuss their son.

On October 23, 2000, petitioners and their son met with respondent"s principal, assistant principal, guidance counselor and school psychologist. During the conference, petitioners" son admitted that he told the student that the document was a list of people he intended to kill when he turns 21 years old. Thereafter, respondent"s principal suspended petitioners" son for five days.

A superintendent"s hearing was held on October 27, 2000 and was attended by petitioners and their son. The superintendent found petitioners" son guilty of endangering the health and safety of students and staff by admitting to keeping a list of students and staff whom he intended to kill when he turns 21. The superintendent suspended him for the remainder of the school year.

On or about November 1, 2000, petitioners" son was admitted to the hospital and was diagnosed with a psychiatric disorder. Petitioners retained counsel and appealed the superintendent"s decision to respondent. By letter dated December 8, 2000, respondent affirmed its superintendent"s decision.

Petitioners commenced this appeal on January 5, 2001 and requested interim relief. On January 19, 2001, I ordered respondent to refer petitioners" son to its Committee on Special Education ("CSE") for an expedited comprehensive evaluation in accordance with "201.6 of the Commissioner"s Regulations to determine if he is a student with a disability. I further directed respondent to notify my Office of Counsel of the evaluation results and the CSE"s decision. I also ordered respondent to provide petitioners" son with appropriate alternative instruction.

In February 2001, respondent"s Director of Pupil Personnel Services informed my Office of Counsel that a "request to evaluate" packet had been sent to petitioners to obtain their consent for the evaluation and that petitioners wanted to meet with respondent"s CSE before consenting to the evaluation. The meeting was scheduled for February 12, 2001 and respondent was to provide my Office of Counsel with a status update after the meeting.

After receiving no additional information, my Office of Counsel contacted respondent to inquire about the status. In response, respondent submitted an affidavit from its Director of Pupil Personnel Services stating that the evaluation had been completed and that respondent"s CSE met and discussed petitioners" son on May 7, 2001. The CSE did not recommend the classification of petitioners" son as a student with a disability and petitioners did not oppose the CSE"s decision. The parties agreed that petitioners" son would receive counseling support services when he returned to school.

Petitioners contend that respondent violated their right to due process and a fair hearing pursuant to Education Law "3214. They assert that they never received written notice of the charges against their son. Petitioners also contend that, despite their request at the hearing, they were not provided with access to their son"s records. Petitioners further argue that the transcript of the hearing provided by respondent is inaccurate and that the superintendent was biased. Petitioners submit that their son"s statement was made in jest and with no homicidal intent against any individual. Petitioners seek an order terminating their son"s suspension and expunging the suspension from his school records. They further ask that their son be transferred to the Yorktown Central School District for the remainder of his public school career.

Respondent maintains that petitioners' son was afforded all the due process to which he is entitled and that the suspension is appropriate and supported by competent and substantial evidence. Respondent maintains that the suspension is warranted because petitioners" son poses a threat to the school community.

Preliminarily, the Commissioner of Education will only decide 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. Since the suspension has been served, petitioners" request for relief regarding that action is moot (Appeal of Wright, 38 Ed Dept Rep 756, Decision No. 14,134; Appeal of Douglas and Judy H., et al., 36 id. 224, Decision No. 13,707). However, since petitioners seek expungement of their son's school records, the appeal is not moot as to that issue.

Education Law "3214(3)(c) provides that no pupil may be suspended for a period in excess of five days unless the pupil and the person in parental relation to the pupil have an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil"s behalf. What constitutes "reasonable notice" varies with the circumstances of each case (Bd. of Educ. of Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133 [1997]; Appeal of K.W., 40 Ed Dept Rep 66, Decision No. 14,422).

The purpose of the notice is to ensure that the student's right to minimal due process is protected. Petitioners acknowledge that they received a telephone call on October 25, 2000 informing them of a "meeting" with respondent"s superintendent on October 27, 2000. Respondent"s superintendent states in his affidavit that the district sent a letter notifying petitioners of the hearing, the charges against their son and their rights relative thereto by regular and certified mail on October 24, 2000, three days before the scheduled hearing. Petitioners attended the hearing. At the start of the hearing, respondent"s superintendent informed petitioners that the hearing was initiated pursuant to Education Law "3214 and described the nature of the hearing and petitioners' rights relative thereto. Petitioners fully participated in the hearing and at no time did they raise the notice issue or request an adjournment. Therefore, based on the facts and circumstances in the record before me, I find that respondent provided petitioners and their son with a fair hearing upon reasonable notice (Appeal of Harkola, 38 Ed Dept Rep 769, Decision No. 14,139; Appeal of Lago, 38 id. 723, Decision No. 14,126; Appeal of Derosa, 36 id. 336, Decision No. 13,741).

The parties disagree over the accuracy of the transcript of the hearing. However, petitioners" have failed to cite even one example of how the transcript is inaccurate. In an appeal to the Commissioner, petitioners bear the burden of establishing all the facts upon which they seek relief and demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of Wendy and Robert L., 39 Ed Dept Rep 224, Decision No. 14,222). Absent any evidence, I cannot find in petitioners" favor on this issue.

I also reject petitioners" contention that it was improper for respondent"s superintendent to serve as the hearing officer. Education Law "3214(3)(c) specifically authorizes the superintendent to personally hear and determine the proceeding, or in the superintendent's discretion, designate a hearing officer.

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 a Student with a Disability, 40 Ed Dept Rep 80, Decision No. 14,426; Appeal of Holt-Silvin, 39 id. 319, Decision No. 14,249; Appeal of Shelli, 37 id. 725, Decision No. 13,968). Evidence was provided at the hearing by the Assistant Principal that petitioners" son admitted to keeping a list of students and staff whom he intended to kill when he turns 21. Petitioners produced no witnesses and introduced no evidence to refute the Assistant Principal"s testimony. The Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by the facts or the record (Appeal of a Student with a Disability, supra; 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 that respondent based its decision on competent and substantial evidence.

However, the record demonstrates that there was a procedural irregularity at the hearing to the extent that no evidence was submitted or testimony taken concerning the appropriate penalty. The superintendent"s decision, which was affirmed by respondent, indicates that he considered the student's anecdotal record in determining the penalty. It is well settled that a student's anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty (Appeal of Ezard, 29 Ed Dept Rep 135, Decision No. 12,245); and only if notice of its contents has been given in advance to the student (Appeal of Ezard, supra; Matter of Kulik, 21 Ed Dept Rep 567, Decision No. 10,793). Petitioners requested their son"s anecdotal record at the hearing and respondent"s witness indicated that he did not have it for petitioners to review. As such, I find that respondent"s superintendent improperly considered petitioners" son"s anecdotal record for purposes of determining the appropriate penalty (Appeal of Ezard, supra; Matter of Labriola, 20 Ed Dept Rep 74, Decision No. 10,321).

However, even excluding petitioners" son"s anecdotal record, 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). The test applied in reviewing the penalty in student discipline cases 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 id. 592, Decision No. 13,419).

Petitioners contend that their son"s remark was made in jest and taken too seriously by school district officials. However, there can be no greater concern than the safety of our school children and all others within the school community. School district officials must take threats of violence seriously and parents should support them in their efforts to maintain a safe and secure school environment for all students and staff. I find that the penalty, although severe, is not irrational or unreasonable and is within respondent"s discretion (Appeal of Ravick, 40 Ed Dept Rep 262, Decision No. 14,477; Appeal of Joseph F., supra).