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Decision No. 14,707

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY from action of the Board of Education of the Valley Stream Union Free School District Thirteen regarding student suspension.

Decision No. 14,707

(March 29, 2002)

John J. Budnick, Esq., attorney for petitioner

Ehrlich, Frazer & Feldman, attorneys for respondent, Christine M. LaPlace, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his son by the Board of Education of the Valley Stream Union Free School District Thirteen ("respondent") from March 22, 2001 through the remainder of the 2000-2001 school year. The appeal must be dismissed.

Petitioner"s son is eleven years old and attended fifth grade in respondent"s James A. Dever Elementary School at the time of the events leading to this appeal. He transferred to the school in January 2001. On March 21, 2001, the school principal suspended petitioner"s son for three days and informed respondent"s superintendent that a school psychologist had been directed to speak with several fifth grade students who were frightened by petitioner"s son. The principal notified petitioner by letter dated March 21, 2001 that his son was suspended until Tuesday, March 27 for threatening to shoot himself and for threatening other children. The principal sent a second letter to petitioner on March 23, 2001 informing petitioner that the suspension would continue for two additional days, totaling five days from Thursday, March 22 through Wednesday, March 28, 2001. The principal"s letter explained that "your child"s continued presence in school poses a danger and/or an ongoing threat of disruption to the academic process."

The superintendent also sent a letter on March 23, 2001 notifying petitioner that a hearing would be held on March 28, 2001 to consider further disciplinary action on the following five charges of engaging in conduct which is insubordinate or disorderly or violent or disruptive and/or a danger to the safety, morals, health or welfare of others when petitioner"s son: (1) told students on March 20, 2001 that he was going to shoot himself; (2) was overheard to say on March 20, 2001 that he was going to harm certain girls in his class that he did not like; (3) told students on March 20, 2001 that he was going to kill his fifth grade teacher at the school; (4) hit and pushed another student in the school stairwell; and (5) physically and/or verbally threatened on March 21, 2001 one of the students who heard him say on March 20, 2001 that he was going to shoot himself, by grabbing the student by the neck and saying, "I"m going to kill you." The second charge was subsequently dropped for lack of evidence.

The hearing was adjourned for petitioner to confer with counsel. A tentative agreement was reached on March 28, 2001, at a meeting with petitioner, the superintendent, principal, and fifth grade teacher, that the student would remain home under direct supervision where he would receive instruction until May 14, 2001. During a three-week transition period from May 14 through June 1, he would receive half-day instruction in school and return full-time on June 4. The agreement was rejected by petitioner"s counsel and the hearing was rescheduled.

Petitioner and his son were represented by counsel at the hearing on April 26, 2001. Witnesses who testified included the fifth grade teacher against whom the alleged threat was made, the principal, the family therapist who counseled petitioner"s family since 1993, the student's tutor during his suspension, the school psychologist, the school social worker and both the student's parents. Petitioner"s son did not testify and no written statement from him was introduced into evidence. No students were called as witnesses and no written statements from students were introduced into evidence. No eyewitness testimony was provided to support the charges but witnesses testified about conversations they had with petitioner"s son. The student's mother testified that, "He said he did have " he had reported that he did want to die of a heart attack, that he felt nobody liked him, and he did not fit into the school. And at that point, one of the kids had suggested to him if he was so unhappy in school, to put a gun to his head, at which point he said, "I don"t care," and he walked away from the other child." She reported that her son was "in a happy-go-lucky mood" during the afternoon of March 20 and said "he was having a very good day." That evening at home she testified that her son "insisted that he said he wished he had died, that nobody had liked him, and he was an outcast. And I told him he should not speak like that, it was not right." She testified that he never mentioned harming other children or threatening his teacher and said he put a student into a wrestling "headlock" while playing in the playground. Petitioner"s counsel conceded for the record that there was a gun in petitioner"s possession that was subsequently surrendered to police.

The teacher testified that she did not speak directly to petitioner"s son on March 20, 2001 but that three other students asked to speak to her during class when they returned after the lunch period. They told her that they were worried that petitioner"s son "wanted to harm himself," because he said that he "wanted to shoot himself" and "wanted to die of a heart attack."

The hearing officer issued his findings of fact and recommendation on April 29, 2001, that petitioner"s son was guilty of charges 1, 3, 4 and 5 and should be suspended for the balance of the 2000-2001 school year with instruction provided at home.

On May 2, 2001, the superintendent issued his written decision to adopt the hearing officer"s findings of guilt on charges 1, 3, 4 and 5 and the recommendation to suspend petitioner"s son for the remainder of the 2000-2001 school year.

Petitioner appealed the superintendent"s decision on May 15, 2001. Respondent"s decision to affirm the superintendent"s decision was confirmed in writing to petitioner on June 4, 2001. Petitioner commenced this appeal on August 2, 2001.

Petitioner seeks an order annulling the determination to suspend his son and to expunge the suspension from his education record.

Petitioner contends that respondent failed to produce competent, non-hearsay witnesses and denied his son the right to cross-examine actual witnesses against him. Petitioner also contends that respondent"s witnesses were improperly allowed to vouch for and support the statements of witnesses who did not appear at the hearing. Petitioner contends that respondent failed to treat his son as a student with a disability and that the penalty was too harsh.

Respondent contends that the suspension was valid, that petitioner was provided due process at the hearing and that the decision was supported by competent, substantial evidence. Respondent contends that petitioner"s son was not a student with a disability at the time of the March 20, 2001 incident and that the three-month suspension was not excessive.

Education Law "3214(3)(a)(1) authorizes a school district to suspend "a pupil who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others." 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 Dale C., 40 Ed Dept Rep 70, Decision No. 14,423; Appeal of Oliver, 39 id. 817, Decision No. 14,392; Appeal of Shelli, 37 id. 725, Decision No. 13,968). A hearing officer may draw reasonable inferences if the record supports the inference (Bd. of Educ. of Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133; Appeal of a Student with a Disability, 39 Ed Dept Rep 427, Decision No. 14,278; Matter of Payne, 18 id. 280, Decision No. 9,840).

The hearing notice stated the first charge against petitioner"s son as having engaged in conduct which is insubordinate or disorderly or violent or disruptive and/or a danger to the safety, morals, health or welfare of others when he told students on March 20, 2001 that he is going to shoot himself. Petitioner testified that he and his wife discussed what had happened with their son. During direct examination, petitioner described the conversation as follows:

Q: And what, if anything, did he tell you had happened?

A: He had said that he was having problems with some of the kids in class. That, again, he wasn"t pretty well-liked, he was having problems keeping friends, and he told me about an incident that happened.

Q: What did he tell you?

A: He told me that he was outside sometime around lunch, so that from what I remember, two kids came up to him saying if he was so unhappy there, "Why don"t you just put a gun to your head and shoot yourself."

Q: What did [ ] say he said?

A: He said, "Maybe, yes, maybe I will," and turned around and walked away.

Petitioner"s wife testified that her son said that he wanted to die and described a meeting at the school with the principal, who testified that she acknowledged there was a gun in their house. The hearing officer could have reasonably drawn the inference on the totality of the record including this testimony, as well as that of other witnesses, that petitioner"s son threatened to shoot himself.

The student's teacher and principal testified in support of all the charges. The fifth grade teacher testified that two students appeared "really upset" and "very worried" when reporting that petitioner"s son threatened to shoot himself and wanted to die. She also testified that she saw red marks on the student's neck who complained after petitioner"s son placed him in a chokehold.

The principal testified that he asked petitioner"s son on March 21, "Do you know why I"m here? Did your mom talk to you last night?" and that he answered, "Yes, she did and I shouldn"t have said any of those things because I upset everybody." The principal also testified that a "visibly agitated" student, whose father visited the school out of concern for his son, "was bouncing up and down as he spoke with me, gesturing with his hands, running his fingers though his hair," saying, "Did you know (petitioner"s son) said that he was going to shoot himself?"

The principal testified that he questioned three students on March 20, two individually and then the three of them together, who reported they heard petitioner"s son make threats to kill himself and his teacher, and saw him push a student on the stairwell, and grab another student by the neck on the playground. When asked if the children indicated whether petitioner"s son told them he had access to a gun, the principal testified that these three students told him petitioner"s son said "there was a gun." The hearing officer found both the principal and teacher to be credible witnesses with some personal knowledge and to be very experienced educators who were able to judge the truthfulness of the children who they interviewed.

It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts on the record (Appeal of Oliver, supra; Appeal of Bowen, 35 Ed Dept Rep 136, Decision No. 13,491; Appeal of Kittell, 31 id. 419, Decision No. 12,686). To the extent the testimony constituted hearsay evidence, it is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 50, Decision No. 14,287; Appeal of Hamet, 36 id. 174, Decision No. 13,692). Accordingly, I find that respondent's determination is supported by competent and substantial evidence and there is no basis to overturn it.

Petitioner"s contention that his son was a student with a disability at the time of the incident is not supported by the record. There is no evidence that a referral was ever made to respondent"s Committee on Special Education (CSE) pursuant to 8 NYCRR "200.4 or that the standard was met to deem the school district to have had knowledge that he was a student with a disability before the behavior that precipitated disciplinary action. 8 NYCRR "201.5(b)(1-4) sets forth the criteria as follows: a school district shall be deemed to have knowledge that a student had a disability prior to the time the behavior occurred if (1) the parent of such student has expressed concern to school personnel in writing that the student is in need of special education; (2) the behavior or performance of the student demonstrates the need for special education; (3) the parent of the student has requested that an individual evaluation of the student be conducted; or (4) a teacher of the student, or other personnel of the school district, has expressed concern about the behavior or performance of the student to the director of special education or to other school district personnel. To the extent petitioner now suspects his son may have a disability, he may make a referral to respondent"s CSE.

With regard to the penalty, petitioner"s son was suspended from March 22, 2001 to the end of the school year. In cases of suspension, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Guevara, 39 Ed Dept Rep 494, Decision No. 14,291; Appeal of Esther F., 39 id. 357, Decision No. 14,258; Appeal of Alexander, 36 id. 160, Decision No. 13,689). The test to be applied in reviewing the penalty 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 Guevara, supra; Appeal of Esther F., supra). Upon the record before me, I find that the imposition of a suspension of approximately three months upon a student for threats against himself, other students and his teacher, in combination with pushing and grabbing other students, is within the discretion of the board of education.

I have considered petitioner"s remaining contentions and find them to be without merit.