Appeal of K.S., on behalf of her son C.S., from action of the Superintendent and Board of Education of the City School District of the City of Norwich regarding student discipline.

 

 

(June 18, 2004)

 

Vitanza, Shabus & Ferig, LLP, attorneys for petitioner, Thomas A. Vitanza, Esq., of counsel

 

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Donald E. Budmen, Esq., of counsel

 

MILL, Commissioner.--Petitioner appeals the determination of the superintendent and Board of Education of the City School District of the City of Norwich ("board") to suspend her son, C.S., for the remainder of the 2002-2003 school year.  The appeal must be dismissed.

During the 2002-2003 school year, C.S. attended the eighth grade at the district's middle school.  On May 27, 2003, C.S. and J.S., a fellow eighth grade student, had a verbal disagreement. As J.S. was leaving school, C.S. called him names and asked J.S. if he wanted to fight.  J.S. agreed.  C.S. told J.S. to meet him outside a particular store a few blocks from school. 

Before meeting J.S. at the store, C.S. went home and retrieved a pocketknife.  When C.S. arrived at the store, J.S. and approximately 25 to 40 students were waiting.  The students encouraged C.S. and J.S. to fight, and J.S. and C.S. began to call each other names.  At some point, C.S. told J.S. that he had a knife.  Sometime thereafter, J.S. punched C.S. in the face, knocking him to the ground and incapacitating him.  Subsequently, the police and paramedics arrived.  One paramedic found a single blade knife measuring 4 to 5 inches in C.S.'s pocket and surrendered it to the police.  C.S. suffered injuries, including a concussion.

By letter dated May 30, 2003, the middle school principal notified petitioner that C.S. was being suspended for five days because of the May 27^th incident.  The letter further stated that C.S. had violated the student discipline code by engaging in both violent conduct and conduct that endangered the safety, morals, health or welfare of others.

By separate letter dated May 30, 2003, the superintendent informed petitioner that he would conduct a disciplinary hearing on June 3, 2003 to consider charges that C.S. had endangered the health, safety and welfare of others and determine whether an additional suspension should be imposed.

At the hearing the superintendent heard testimony from C.S., J.S., petitioner, the principal, and two student witnesses.

J.S. testified that C.S. told him that he had a knife and that when J.S. asked to see it, C.S. told him that he would see it when it was sticking out of his side.  J.S. then stated that he punched C.S. when he saw C.S. reach into his pocket.  J.H., a witness, also stated that she heard C.S. threaten to use the knife.  The principal testified that during her investigation, J.W., another witness, had informed her that C.S. had made this threat to J.S.  However, at the hearing J.W. denied making such a statement.  J.S., J.H. and J.W. all testified that they did not see C.S.'s knife during the fight. 

C.S. testified that, although he told J.S. he had a knife, he never threatened to use it and that he was turning to leave when J.S. punched him. 

By letter dated June 6, 2003, the superintendent informed petitioner that the charges against C.S. were sustained.  The letter also advised petitioner that C.S. would be suspended for the remainder of the 2002-2003 school year. 

Petitioner appealed this determination to the board on or about June 24, 2003.  By letter dated June 25, 2003, the board informed petitioner that it had affirmed the superintendent's determination.  This appeal ensued.

Petitioner contends that the superintendent did not conduct a fair hearing because he was "terse and condescending" to C.S., her attorney and her, but courteous to J.S. She further alleges that the superintendent exhibited bias towards her son when he imposed a longer suspension on C.S. than J.S.  Petitioner also appears to contend that the superintendent improperly permitted hearsay testimony from the principal.  In addition, petitioner contends that neither the superintendent nor the board has the authority to suspend a student for out-of-school conduct, that C.S.'s suspension was inconsistent with the code of conduct, and that the code of conduct is inconsistently applied.  She requests that the suspension decision be reversed and that the matter be expunged from her son's school records.

Respondents assert that the petition was neither properly nor timely served.  Respondents further contend that the superintendent was authorized to suspend C.S. for conduct that occurred off school grounds and that there was competent and substantial evidence that C.S. participated in the objectionable conduct.  Respondents maintain that the penalty imposed against C.S. was appropriate and consistent with the district's code of conduct, and respondents deny any discriminatory treatment of C.S.

Pursuant to "275.16 of the Commissioner's regulations, an appeal to the Commissioner of Education must be initiated within 30 days of the action or decision complained of, unless any delay is excused for good cause shown.  The record indicates that petitioner properly served a petition on the board's clerk within 30 days of the board's determination of June 25, 2003.  Accordingly, the appeal is timely as to the board.

     That is not the case, however, with respect to the superintendent.  Although he is named in the caption, the superintendent was never served with the notice of petition and petition.  A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Roff, 41 Ed Dept Rep 346, Decision No. 14,708; Appeal of Gargan, 40 id. 465, Decision No. 14,528; Appeal of World Network Int'l Services, Inc., 39 id. 30, Decision No. 14,164).  Such an individual must be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Wheeler, 40 Ed Dept Rep 678, Decision No. 14,581; Appeal of Heller, 38 id. 335, Decision No. 14,048).  Since the superintendent's rights would be adversely affected by any determination that he acted improperly, the superintendent is a necessary party to this proceeding.  Petitioner was therefore required to personally serve him with the notice of petition and petition (8 NYCRR "275.8; Appeal of Wheeler, supra; Appeal of Heller, supra). Petitioner's failure to do so warrants the dismissal of this appeal.

Even if I were not to dismiss this appeal on procedural grounds, I would dismiss it on the merits.  Petitioner claims that neither the superintendent nor board had the authority to suspend C.S. for off school grounds conduct.  Petitioner is incorrect.  Prior Commissioner's decisions have upheld the suspension of students for off-campus conduct (Appeal of Ravick, 40 Ed Dept Rep 262, Decision No. 14,477; Appeal of Orman, 39 id. 811, Decision No. 14,389; Appeal of Mangaroo, 33 id. 286, Decision No. 13,050; Appeal of Pollnow, 22 id. 547, Decision No. 11,069; Appeal of Rodriguez, 8 id. 214, Decision No. 8015).

Case law has also recognized that students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety of pupils within the educational system or adversely affect the educative process (Matter of Coghlan v. Board of Education, 262 AD2d 949 [4th Dept 1999], citingPollnow v. Glennon, 594 F.Supp. 220, 224 [S.D.N.Y. 1984], aff'd, 757 F.2d 496 [2d Cir. 1985]).  The incident for which petitioner's son was suspended began on school grounds and ultimately involved between 25 to 40 student observers.  School officials are authorized to impose disciplinary sanctions for such an incident that started on school grounds and resulted in the involvement of so many students (Appeal of Pollnow, supra).  Thus, respondents clearly had the authority to adjudicate this matter.

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 Central School Dist. v. Commissioner of Educ., 91 NY2d 133; 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 147, Decision No. 14,642). At the hearing, C.S. testified that he had challenged J.S. to a fight, that he told J.S. where to meet him, that he went home to get his pocketknife and that during the fight, he told J.S. he had a knife.  In addition, witnesses testified that C.S. threatened to use the knife against J.S.  Based on the parties' submissions, and my review of the hearing transcript, I find no reason to substitute my judgment for that of the board.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  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 J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723; Appeal of Harlan, 40 id. 309, Decision No. 14,488).  In light of the seriousness of C.S.'s conduct, I cannot conclude that the imposition of a suspension of less than 20 days was inappropriate (see, Appeal of M.G., 41 Ed Dept Rep 58, Decision No. 14,614; Appeal of DeRosa, 36 id. 336, Decision No. 13,741; Appeal of Alexander, 36 id. 160, Decision No. 13,689). As such, there is no basis to expunge C.S.'s record.

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

 

THE APPEAL IS DISMISSED.

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