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Decision No. 15,001

Appeal of D.G., on behalf of J.G., from action of the Board of Education of the North Salem Central School District regarding student discipline.



(December 12, 2003)


McGuire, Kehl & Nealon, LLP, attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel


     MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Salem Central School District ("respondent") to uphold a disciplinary penalty imposed on his daughter, J.G., by the superintendent.  The appeal must be dismissed.

On May 16, 2003, petitioner"s daughter, J.G., then a senior at respondent"s middle/high school, attended the school-sponsored Junior/Senior Prom.  In the course of the evening J.G. was observed in the girls" lavatory by a chaperone, who heard J.G. say she was drunk.  The chaperone reported this conversation to respondent"s assistant high school principal.  Another chaperone saw J.G. and spoke to her. He smelled alcohol on her breath and noted that her speech was slurred.  He also noted that at the beginning of the evening J.G. was argumentative and loud, which was out of character for her.

A third chaperone, also one of J.G."s teachers, observed J.G. to be unsteady and confused.  She spoke to J.G. and found her speech to be slurred.  J.G. admitted to this chaperone that she had been drinking earlier in the evening.  This chaperone also observed J.G. wander into the kitchen, bump into a waiter and curse at people attempting to help her out of the way.  She stated that this type of behavior was not typical of J.G.

Based on the observations of the three chaperones, the principal and assistant principal asked J.G. whether she and her companions had consumed alcohol.  The principal contacted J.G."s parents at approximately 10:30 p.m. and asked them to come take J.G. home from the prom.  The assistant principal then called J.G."s parents and told them J.G. could remain at the prom, which she did.

By letter dated May 19, 2003, the principal notified petitioner that his daughter would be suspended for five days because she was under the influence of alcohol at the prom.  Petitioner met with the principal on that date and interviewed the witnesses.

By separate letter dated May 19, 2003, the superintendent notified petitioner that a hearing had been scheduled for May 27, 2003.  The letter stated that J.G. was charged with conduct subject to discipline under Education Law "3214 and the district"s code of conduct.  Specifically, J.G. was charged with:

Engaging in any conduct that endangers the safety, morals, health or welfare of others. . .including possessing, consuming, selling, distributing or exchanging alcoholic beverages, drugs, controlled substances, or related paraphernalia, or being under the influence of alcohol, drugs or controlled substances.

At the hearing, the three chaperones, assistant principal and J.G. testified.  The hearing officer recommended that J.G. be found guilty and suspended for the remainder of the school year, including graduation ceremonies.

By letter dated June 3, 2003, respondent"s superintendent affirmed the hearing officer"s finding of guilt and his penalty.  She stated that the district would arrange home instruction for J.G. and permit her to take year-end exams, so that she would receive her diploma.  Petitioner appealed this decision, and presented his arguments to respondent on June 18, 2003.  By letter dated June 19, 2003, respondent upheld the finding of guilt and the penalty.  Petitioner commenced this appeal on July 17, 2003.  Petitioner requests that I reverse the finding of guilt, reverse the penalty, and direct expungment from his daughter"s record.

Petitioner contends that being under the influence of alcohol is not a proper ground for suspension pursuant to "3214(3)(a) without a showing that the student actually endangered the safety, morals, health or welfare of others.  He maintains that there is no evidence in the record that his daughter"s actions endangered anyone.  Petitioner also asserts that the hearing officer used the wrong standard of proof and exhibited bias in his conduct of the hearing.  Finally, petitioner contends that the penalty imposed on his daughter was excessive.

Respondent maintains that a suspension was warranted.  It contends that petitioner"s disagreement with the hearing officer"s findings does not establish bias.  Respondent also maintains that the penalty was appropriate.  Finally, respondent asks that I disregard the reply submitted by petitioner.

I must first address several procedural matters.  Respondent asks that I disregard petitioner"s reply for failure to serve it on respondent"s attorney, and for failure to verify it under oath.  Although petitioner should have sent his reply to respondent"s attorney (see 8 NYCRR "275.8), the record indicates that he served the reply on respondent"s district clerk.  Where, as here, a petitioner is proceeding without representation by counsel, a liberal interpretation of the rules is appropriate and I will not reject the reply because it was not served upon counsel.

Petitioner also claims he supplied a verified reply to the district, which may have been lost by respondent.  My Office of Counsel received a verification with the reply.  Even if respondent did not receive a verification, such an omission is not sufficient to require that I dismiss the petition (See, Appeal of V.B., 41 Ed Dept Rep 451, Decision No. 14,743; Appeal ofHollister, 40 id. 658, Decision No. 14,577).  Accordingly, I will accept petitioner"s reply.

Petitioner"s contention that his daughter"s condition at the prom did not violate "3214(3)(a) because she did not endanger the safety, morals, health or welfare of other students is unavailing.  The Commissioner has upheld suspensions pursuant to "3214 when students were shown to be under the influence of alcohol or to have possessed it without consuming it (Appeal of James L., 39 Ed Dept Rep 482, Decision No. 14,288; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899).

Moreover, Education Law "2801 requires respondent to adopt a code of conduct for the maintenance of order on school property or at school functions.  Respondent"s code of conduct clearly states that students are subject to disciplinary action when they engage in any conduct that endangers the safety, morals, health or welfare of others, including but not limited to "possessing, consuming, selling, distributing or exchanging alcoholic beverages, drugs, controlled substances, or related paraphernalia, or being under the influence of alcohol, drugs or controlled substances."  I find this provision to be clear and reasonable.

Additionally, the principal and assistant principal sent a letter dated March 1, 2003 to parents and students reminding them that no alcohol would be tolerated at the prom.  The letter specifically states that drinking in limousines and arriving at the prom under the influence of alcohol is prohibited.  Students attending the prom and their parents were asked to sign a form stating they had read the regulations and understood them as a condition of attendance.

Petitioner also claims that because his daughter did not actually consume alcohol on the premises, but rather on a private bus en route to the prom, she did not violate the district"s policy.  However, the code of conduct forbids attending a school-sponsored event, such as the prom, while under the influence of alcohol.  J.G. admits that she had "a few sips or a drink" of alcohol on the bus.  This admission, coupled with the chaperones" descriptions of her behavior and their testimony of smelling alcohol on her breath, is sufficient evidence to support respondent"s findings (See, Appeal of James L., supra; Appeal of Cynthia and Robert W., supra).

Petitioner also claims the hearing officer used an incorrect standard of proof, substantial evidence, in recommending a finding of guilt.  The 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 (Matter of Bd. of Educ., Monticello CSD v. Commissioner of Education, et al., 91 NY2d 133; Matter of Bd. of Educ., City School Dist. of the City of New York v. Mills, et al., 293 A.D. 2d 37; Appeal of James L., supra; Appeal of Cynthia and Robert W., supra).  Thus, the hearing officer employed the correct standard of proof and the evidence supports the hearing officer"s findings.

Petitioner"s assertions that the hearing officer was biased and that respondent"s failure to follow its own guidelines deprived J.G. of a fair hearing also lack merit.  Petitioner"s allegation that the hearing officer found J.G. guilty of insubordination when it was not charged is incorrect.  The hearing officer in his written findings stated that J.G. was guilty of acting "in an insubordinate manner and/or in a manner which endangered the safety, morals, health or welfare of others, as provided in Education Law "3214."  The hearing officer then stated the specific ground for his recommendation: "she engaged in conduct that endangered the safety, health, morals or welfare of others more specifically she consumed and was under the influence of alcohol at the North Salem Junior/Senior Prom."

Petitioner"s claim of bias is also predicated on the hearing officer"s statement that he would not impose a final punishment on J.G. until he had heard the other cases concerning alcohol consumption at the prom.  On the taped record of the hearing, the hearing officer states the proposed penalty which is the penalty he ultimately recommended.  Therefore, he apparently was not influenced by other student"s disciplinary proceedings in making his final determination.  In any event, I do not find it unreasonable to consistently impose similar punishment under like circumstances.

Petitioner also claims that respondent"s failure to require the teachers to make written reports of the alleged infraction impeded J.G."s defense.  While the code of conduct requires written reports, I find the absence of the reports in this instance did not prejudice petitioner.  First, the teachers gave a verbal report of J.G."s behavior to both the principal and assistant principal contemporaneous with the event.  Second, petitioner met with respondent"s principal on the following Monday for an informal conference.  At the conference, he was apprised of the charges against his daughter, and given an opportunity to ask questions.  Thus, petitioner has not demonstrated that the absence of written reports deprived J.G. of a fair hearing.

Finally, petitioner argues that the penalty imposed on his daughter was excessive and that the hearing officer made an example of J.G. to send a message to other students.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689).  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 Cynthia and Robert W., supraAppeal of Alexander, supra; Appeal of Forestiero, 34 Ed Dept Rep 592, Decision No. 13,419).  I have upheld similar suspensions where students merely possessed alcohol and there was no evidence of consumption (Appeal of Cynthia & Robert W., supra), and where a student had a .03 blood alcohol level at a school dance (Appeal of James L., supra).  Here, petitioner"s daughter actually consumed alcohol in knowing violation of school policy.  Thus, I do not find the suspension in this case to be excessive.

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