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Decision No. 14,894

Appeal of M.K., on behalf of her daughter J.S., from action of the Board of Education of the West Babylon Union Free School District regarding student discipline.


(June 24, 2003) 

Barry V. Pittman, Esq., attorney for petitioner 

Van Nostrand & Martin, attorneys for respondent, William C. Morrell, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the suspension of her daughter, J.S., by the Board of Education of the West Babylon Union Free School District ("respondent").  The appeal must be dismissed.

On September 23, 2002, J.S., a sophomore at respondent"s high school, was involved in an altercation with another student.  By letter dated September 24, 2002, the principal notified petitioner that J.S. was suspended from school effective September 23 and scheduled a superintendent"s hearing for September 26, 2002.  The hearing was adjourned at petitioner"s request until October 9, 2002 to enable her to obtain an attorney. 

At the hearing, an administrative assistant testified that he saw J.S. and another student fighting with a third girl, J.O.  The assistant principal testified that he interviewed J.S. and her companion separately, and that J.S. admitted throwing the first punch.  He also stated that he witnessed J.S. write a statement, in which she admitted speaking to J.O. and then hitting her after J.O. replied.  J.S. also wrote in her statement that J.O. grabbed her hair and pushed her head into a locker, so she struck J.O. to get her off of her.  Both J.S. and J.O. testified at the hearing, and their statements were received into evidence.  Although much of J.O."s recorded testimony is inaudible, she stated that her written statement was a fair description of what happened on September 23.  J.S. also testified about an email exchange between the two girls two days prior to the altercation that allegedly provoked the incident, but she admitted that she spoke to and struck J.O. first.  

The hearing officer found J.S. guilty of assaulting another student.  Although the district requested that J.S. be suspended for the remainder of the 2002-2003 school year, the hearing officer instead recommended that J.S. be suspended for the remainder of the first semester, through February 2, 2003.  The superintendent notified petitioner by letter dated October 9, 2002 that he accepted the hearing officer"s recommendation.  By letter to respondent dated October 17, 2002, petitioner appealed the length of the suspension, but not the determination of guilt.  By letter dated October 30, 2002, respondent notified petitioner that it voted to uphold the superintendent"s determination.  This appeal ensued.  Petitioner"s request for interim relief was denied on December 2, 2003.

Petitioner does not contest the original five-day suspension or the subsequent determination that her daughter was guilty of assaulting another student.  She alleges, however, that the suspension imposed by the superintendent is excessive and requests that it be expunged from J.S."s record.  Respondent asserts that the penalty is reasonable and proportionate to the offense, especially since J.S. admitted that she initiated verbal and physical contact with the other student.

Because J.S. has already served the suspension, the appeal is moot except to the extent that petitioner seeks expungement of J.S."s records (Appeal of Mace, 40 Ed Dept Rep 110, Decision No. 14,433).

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of A.L., Jr., 42 Ed Dept Rep ___, Decision No. 14,883; Appeal of T.N., 42 id. ___, Decision No. 14,836).  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 (Appeal of A.L., Jr., supra; Appeal of T.N., supra).  Although petitioner argues that J.O. taunted J.S. in an email exchange two days prior to the incident, J.S. nonetheless admitted that she initiated the incident and struck J.O. first.  I find that the penalty imposed is not irrational or unreasonable and is within respondent"s discretion, even though J.S. has no prior disciplinary record.  Accordingly, I will not substitute my judgment for respondent board.