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Decision No. 14,733

Appeal of P.K., on behalf of his son J.K., from action of the Board of Education of the Hicksville Union Free School District regarding student discipline.

Decision No. 14,733

(May 31, 2002)

Ciotti, Damm & Kilgannon, LLP, attorneys for petitioner, Frank X. Kilgannon, Esq., of counsel


Guercio & Guercio, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the suspension of his son, J.K., by the Board of Education of the Hicksville Union Free School District ("respondent"). The appeal must be dismissed.

By letter dated October 26, 2001, the Hicksville Middle School principal notified petitioner and his wife that J.K. was suspended for five days beginning October 29, 2001 for possessing a dangerous weapon, a pellet gun, in the school building. By letter dated October 29, 2001, respondent"s superintendent notified petitioner and his wife that a hearing would be held on November 1, 2001 to consider charges that J.K. had endangered the safety, health and welfare of himself and others, and was insubordinate. Specifically, J.K. was charged with bringing a weapon, identified as a pellet/BB gun, to the Hicksville Middle School on Friday, October 26, 2001, and possessing that weapon on school grounds in violation of school rules and district policy. The superintendent amended the charges on October 31, 2001, to include an allegation that on Monday, October 29, 2001, J.K. made inappropriate threats of violence toward a fellow middle school student via the Internet.

At the November 1, 2001 hearing, J.K. admitted the charges against him. Accordingly, the superintendent sustained them. After reviewing J.K."s educational records and a statement by petitioner"s wife, the superintendent suspended J.K. for the duration of the 2001-2002 school year. Petitioner appealed to respondent, which upheld the superintendent"s determination on November 29, 2001. This appeal ensued. Petitioner"s request for interim relief was denied on January 23, 2002.

Petitioner contends that J.K."s suspension is excessive. Although he concedes that J.K. admitted the charges, he asserts that the weapon is actually a small plastic toy gun and that J.K. was merely showing it off. Petitioner also states that J.K. never intended to use the pellet gun on a fellow student. Petitioner asserts that documents demonstrating J.K."s academic achievement should have been considered at the November 1 hearing, but were not presented because of his inexperience and the absence of counsel. Petitioner also objects that respondent denied him the opportunity to argue his appeal in person. Finally, he claims that respondent has failed to provide J.K. with effective alternative education. Petitioner requests that J.K. be reinstated to the eighth grade, or, in the alternative, that the penalty be reduced in view of J.K."s record. He also requests an opportunity to personally appear before respondent and seeks meaningful alternative education for J.K.

Respondent argues that J.K. admitted the charges and maintains the penalty is reasonable, especially since it is less than the one-year suspension permitted by the district"s Code of Conduct. Respondent contends that petitioner failed to exhaust his administrative remedies regarding alternative instruction because he failed to address his concerns to the superintendent. Moreover, respondent asserts that these allegations are moot. Finally, respondent asserts that the Commissioner should not consider petitioner"s exhibits regarding J.K."s academic achievement because they were not part of the November 1, 2001 hearing record.

I must first address several procedural issues. Petitioner submits with his petition twenty-one exhibits purporting to demonstrate J.K."s academic achievement. Petitioner apparently submitted these same exhibits to respondent when he appealed the superintendent"s determination. With regard to hearings on student suspensions, Education Law "3214(3)(c)(1) provides, in pertinent part:

A record of the hearing shall be maintained . . .The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent. The report of the hearing officer shall be advisory only, and the superintendent may accept all or any part thereof. An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it. [emphasis supplied]

Since these materials were outside the hearing record, respondent should not have considered them (Appeals of M.S. and M.D., 41 Ed Dept Rep ___, Decision No. 14,687; Appeal of A.G., 41 id. ___, Decision No. 14,681). Likewise, I will not consider them either.

I must also reject petitioner"s argument that he was improperly denied the opportunity to personally appear before respondent. Education Law "3214 does not require a board of education to allow a petitioner to present oral argument in an appeal of a superintendent"s previous determination to suspend a student (Appeal of Wilson, 28 Ed Dept Rep 254, Decision No. 12,098). Moreover, the record reflects that respondent received and considered written argument from petitioner"s attorney.

The appeal must be dismissed on the merits. 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 (Bd. of Educ. of Monticello CSD v. Commissioner of Educ., 91 NY2d 133; Bd. of Educ. of City School District of City of New York v. Mills, ___ AD2d ___, Third Dept., Case No. 90751, April 18, 2002; Appeal of C.D., 41 Ed Dept Rep ___, Decision No. 14,642). The transcript reveals, and petitioner concedes, that J.K freely admitted the charges against him. Based on this admission, the determination of guilt is beyond challenge (Appeal of Dale C., 40 Ed Dept Rep 70, Decision No. 14,423; Appeal of Eddy, 36 id. 359, Decision No. 13,748).

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of C.D., 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 (Id.). Respondent asserts that contrary to petitioner"s depiction of the weapon as a "toy gun," the weapon is a realistic-looking, operable, metal and plastic replica of a handgun with a removable weighted ammunition clip, capable of shooting pellets. Furthermore, respondent states that whereas toy guns have orange barrel tips to distinguish them from real guns, the tip of J.K."s weapon was apparently altered and painted silver to match the barrel, making it appear more like a real gun. In addition, respondent states that J.K. threatened another student by leaving a message on his computer that he was going to the Army surplus store to buy pellets for that student. Respondent maintains that this student was very upset, cried upon hearing about the message and was fearful about returning to school.

Although J.K. expresses remorse for his actions, states that he thought the gun was a toy and that he never intended to use the weapon or threaten anyone, he nonetheless admits bringing the gun to school. The possession by students of weapons in school cannot be tolerated under any circumstances, especially in light of recent violent events in our nation"s schools. Furthermore, although J.K. claims that he meant his message as a joke, he nonetheless left a message on his computer that threatened another student, the one whom he believed had turned him in to school authorities. Upon the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in imposing a penalty of suspension from school for the remainder of the 2001-2002 school year. J.K.'s conduct was serious and potentially dangerous, and it must be impressed upon him that such conduct will not be tolerated.

Finally, with regard to alternative instruction, Education Law "3214(3)(e) provides in pertinent part: "Where a pupil has been suspended . . .and said pupil is of compulsory attendance age, immediate steps shall be taken for his or her attendance upon instruction elsewhere..." Petitioner alleges, without evidence, that tutors provided by respondent have been unreliable, that respondent failed to provide classroom assignments, notes, and tests, and that cooperation from and communication with his son"s regular teachers and the school principal have been improperly withheld. Respondent asserts that it is providing J.K. with two hours of tutoring a day, that teachers have provided curriculum materials for the tutors, and that the superintendent has approved make-up tutoring and addressed previous problems regarding J.K."s Earth Science laboratory work. Petitioner has the burden of proving the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of K.W., 40 Ed Dept Rep 66, Decision No. 14,422). Petitioner has failed to meet his burden of proving that the alternative instruction provided by respondent is inadequate.