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Decision No. 14,740

Appeal of T.M., on behalf of his son T.M., JR., from action of the Board of Education of the Marlboro Central School District regarding student discipline.


Decision No. 14,740

(June 19, 2002)


Drake, Sommers, Loeb, Tarshis & Catania, PLLC, attorneys for petitioner, Thomas K. McCarren, Esq., of counsel


Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Stuart S. Waxman, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Marlboro Central School District ("respondent") affirming the suspension of his son, T.M., Jr. ("T.M."), for the remainder of the 2001-2002 school year. The appeal must be dismissed.

By letter dated August 3, 2001, respondent"s high school principal charged T.M. with "physically assaulting another individual on July 30, 2001, while on [school] grounds" in violation of the district"s code of conduct. A superintendent"s hearing was held on August 8, 2001. After hearing testimony from the victim, a student witness and a police officer, the hearing officer found T.M. guilty of the charge and recommended his suspension for the remainder of the 2001-2002 school year. By letter dated August 14, 2001, the interim superintendent accepted the hearing officer"s findings and recommendations. On August 30, 2001, petitioner appealed to respondent, which upheld the interim superintendent"s determination on October 26, 2001. This appeal ensued. Petitioner"s request for interim relief was denied on November 27, 2001.

Petitioner claims that respondent"s determination is arbitrary and capricious, that the penalty is disproportionate to the offense and is excessive as compared to prior Commissioner"s decisions. Petitioner seeks a reversal of respondent"s determination and expungement of T.M."s record. Respondent asserts that its determination is supported by competent and substantial evidence and that the penalty is appropriate.

I must first address a procedural issue. In his memorandum of law, petitioner raises several issues not included in the petition. Petitioner claims, interalia, that the hearing officer failed to review T.M."s anecdotal record prior to determining the penalty and that the student witness was biased in favor of the victim. A memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of D.C., 41 Ed Dept Rep ___, Decision No. 14,661; Appeal of Muench, 38 id. 649, Decision No. 14,110; Appeal of McDougall, et al., 37 id. 611, Decision No. 13,941). Therefore, I have not considered those portions of petitioner"s memorandum of law that raise new arguments.

The appeal must be dismissed. 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 ___, 741 N.Y.S.2d 589, April 18, 2002; Appeal of C.D., 41 Ed Dept Rep ___, Decision No. 14,642). Petitioner does not deny the charge, but attempts to distinguish between a "fight," supposedly involving two individuals, and an assault, by one individual against another. Petitioner alleges that the evidence "simply suggested a fight" between T.M. and the victim, whom petitioner describes as "an older, physically intimidating graduate" who had subjected T.M. to a pattern of public humiliation and embarrassment over several months.

The hearing transcript reveals that on July 30, 2001, T.M., and another student (C.P.), sat in a minivan in the school parking lot waiting for the victim. When another student emerged from the building, T.M. asked that student to have the victim come outside because he wanted to see him. When the victim came out and approached the van, C.P. distracted him while T.M. approached him from behind and struck him in the head, causing him to drop to the ground. The student witness, who had summoned the victim for T.M., testified that he saw T.M. strike the victim repeatedly while he lay unresponsive and defenseless on the ground. The witness also testified that he saw quarters rolling on the ground near the victim, leading him to conclude that T.M. had struck the victim with a roll of quarters. The victim was rendered unconscious, was bleeding from the head, and had to be transported by ambulance to the hospital, where he received stitches for two lacerations, was treated for a concussion, and remained for two nights. In sum, the testimony reveals that T.M. assaulted the victim with premeditation, actually summoning the victim to the parking lot where he lay in wait. He also brought a friend with him to distract the victim so that he was able to hit the victim from behind, and continued to assault the victim even after the victim was on the ground. Under these circumstances, I find that there is competent and substantial evidence that T.M. assaulted the victim.

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.). The testimony reveals that T.M. initiated the attack and continued to strike the victim while he was defenseless on the ground. At the time of the hearing, the victim"s injuries left him unable to resume normal daily activities such as driving, working and playing football. The victim also needed to consult with a dentist and ophthalmologist for injuries to his jaw and eye, respectively. Although T.M. had no prior disciplinary record and had achieved academic honors prior to this incident, T.M.'s conduct was serious and dangerous, and it must be impressed upon him that physical violence will not be tolerated. Upon the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in imposing a penalty of suspension for the remainder of the 2001-2002 school year.

I have reviewed petitioner"s remaining arguments and find them without merit.