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Decision No. 14,836

Appeal of T.N., on behalf of his daughter S.N., from action of the Board of Education of the Baldwin Union Free School District relating to student discipline.



(January 31, 2003)


Reisman, Peirez & Reisman, L.L.P., attorneys for petitioner, Marybeth Malloy, Esq., of counsel


 Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") to suspend his daughter, S.N., for the remainder of the 2001-2002 school year.  The appeal must be dismissed. 

On September 24, 2001, S.N., a ninth grader at respondent"s high school, heard a rumor concerning a possible bomb threat to the high school on October 17, 2001.  Instead of notifying a school staff member, S.N. admits that she posted the following message on a computer bulletin board used by students: " do u know that there is gonna be a bomb threat on the school on october 17??!! i just heard it today im not goin to skool that day shyt whos wit me [sic]?"  Three people responded, one of whom indicated that he or she had "heard it too."  On October 15, 2001, another student notified the school administration of the rumor.  

By letter dated October 18, 2001, the high school principal notified petitioner that she was suspending S.N. for five days for insubordination for failing to comply with the school"s Code of Behavior.  Specifically, the letter stated that S.N. failed to report information regarding an upcoming bomb threat and posted the information on a school computer bulletin board.  By letter also dated October 18, 2001, the superintendent notified petitioner that she would conduct a superintendent"s hearing.

Following a hearing, the superintendent found S.N. guilty of the charges and suspended her for the remainder of the 2001-2002 school year.  The superintendent also directed the principal to assess S.N."s progress while on home instruction, on or about February 27, 2002, and if she found S.N."s progress to be satisfactory, S.N. would be allowed to return to school on March 4, 2002.

Petitioner appealed the superintendent"s decision to respondent on November 7, 2001.  By letter dated November 30, 2001, respondent modified the superintendent"s decision to direct a progress review on January 18, 2002, with a return to regular instruction on January 28, 2002 if S.N. completed all her assigned work satisfactorily.  This appeal ensued.

Petitioner contends that the penalty is arbitrary and capricious because no other students were disciplined, and is disproportionate not only to the offense but also in light of the fact that S.N. had no prior disciplinary record.  Petitioner alleges that the superintendent failed to consider extenuating circumstances in S.N."s family life and improperly considered S.N."s academic record in assessing the penalty.  Petitioner also asserts that his due process rights were violated because he received notice only two business days before the superintendent"s hearing.  Petitioner seeks to reverse and expunge the suspension from S.N."s record. 

Respondent asserts that: the petition fails to state a claim for relief; S.N."s behavior violated the Code of Conduct; the penalty was proportionate to the offense; and the appeal is moot since S.N. returned to school on January 28, 2002.

Education Law "3214(3)(a) authorizes a superintendent to suspend "a pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others."  A decision to suspend a student from school 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, 140-41; Bd. of Educ. of City School Dist. of City of New York v. Mills, 293 AD2d 37; Appeal of C.D., 41 Ed Dept Rep ___, Decision No. 14,642).  Petitioner concedes that S.N. admittedly failed to report the bomb threat and posted the warning.  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 Jeffrey and Tammy M., 39 id. 733, Decision No. 14,364; 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 P.K., 41 Ed Dept Rep ___, Decision No. 14,733; 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 a suspension for the remainder of the year was warranted because, as a result of S.N."s posting on the computer bulletin board, the rumor of a bomb threat was disseminated throughout the school community, approximately one-half of the middle and high school students did not attend school on October 17, 2001, and the district incurred significant inconvenience and expense in imposing precautionary security procedures. 

S.N. was readmitted to school on January 28, 2002.  Accordingly, the length of her suspension amounted to approximately three months.  Under the circumstances of this case I will not substitute my judgment for respondent"s.  I note, however, that the record fails to indicate whether S.N."s school records were modified to reflect the actual length of her suspension and her readmission on January 28, 2002.  If respondent has not already done so, respondent should ensure that S.N."s school records include this information. 

In light of this disposition, I need not address the parties" remaining contentions.