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Decision No. 15,223

Appeal of P.M., on behalf of J.M., from action of the Board of Education of the City School District of the City of North Tonawanda regarding student discipline.

Decision No. 15,223

(May 12, 2005)

Tisdale, Coykendall & Weber, Esqs., attorneys for petitioner, W. Maxwell Coykendall, Esq., of counsel

Norton/Radin/Hoover/Freedman, Esqs., attorneys for respondent, Bernard B. Freedman, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of North Tonawanda ("respondent") to suspend her son, J.M., from school. The appeal must be dismissed.

During the 2003-2004 school year, J.M. attended respondent's high school. On May 4, 2004, J.M. was involved in a fight with another student. During the fight, J.M. punched the student in the face, breaking the student's nose. The high school principal suspended J.M. for five days and recommended to the superintendent that a longer suspension be imposed.

On May 10, 2004, a hearing officer, designated by the superintendent, conducted a disciplinary hearing pursuant to Education Law �3214. On May 14, 2004, the hearing officer issued a report and recommendation finding J.M. guilty of fighting on school grounds. The hearing officer recommended an additional five-day suspension, citing J.M.'s remorse and plea for leniency, with the proviso that a further long-term suspension would be warranted if J.M. violated school rules again prior to the end of the school year. On May 17, 2004, after considering the hearing officer's recommendation and reviewing the entire record, including J.M.'s prior disciplinary history, the superintendent issued his decision, finding J.M. guilty of fighting and suspending him until June 30, 2005.

Petitioner appealed to respondent. By letter dated June 10, 2004, respondent upheld the superintendent's determination. This appeal ensued.

Petitioner contends that her son acted in self-defense. She claims that he previously had been threatened and assaulted by the other student and had no choice but to fight. Petitioner also asserts that respondent failed to provide her with a copy of the transcript and exhibits from the disciplinary hearing. Petitioner further claims that respondent has not complied with Education Law �2801-a, which requires all school districts to develop a school safety plan and prescribes its required components.

Respondent contends that the appeal is untimely. Respondent maintains that J.M.'s suspension through June 30, 2005 is warranted based on the severe and dangerous nature of his conduct and on his anecdotal record. Respondent asserts that it is in compliance with Education Law �2801-a.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or performance of the act complained of, unless any delay is excused for good cause shown (8 NYCRR �275.16). Where a school district is named as a respondent, service must be effected upon the district clerk, a member of the board, the superintendent of schools or a person in the superintendent's office who has been designated by the board of education to accept service (8 NYCRR �275.8[a]). Petitioner attempted to commence this appeal on July 8, 2004 by serving a petition on the superintendent's secretary. Petitioner's affidavit of service did not indicate that the secretary was authorized to accept service, and, on July 14, 2004, my Office of Counsel returned the petition for improper service. Petitioner re-submitted her appeal with a new affidavit of service indicating that, on July 20, 2004, she served the petition on the district clerk - beyond the 30-day period. Petitioner offered no explanation in her petition to excuse the late filing nor did she submit a reply to respondent's timeliness argument. The appeal, t herefore, is dismissed as untimely.

Even if the appeal were not untimely, I would dismiss it on the merits. In an appeal to the Commissioner, the petitioner has the burden of demonstrating the facts upon which relief is sought and a clear right to the relief requested (8 NYCRR �275.10; Appeal of Smith, 44 Ed Dept Rep 201, Decision No. 15,148; Appeal of Goldin, 43 id. 453, Decision No. 15,048).

As a procedural matter, petitioner claims that she was not provided a copy of the transcript of the disciplinary hearing or copies of exhibits introduced at the hearing. Respondent asserts that petitioner was informed of her right to such documents upon request, but that she never made such a request. Petitioner did not submit a reply to controvert respondent's assertion. Petitioner's allegation, therefore, is unsubstantiated.

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 (Bd. of Educ. of Monticello CSD v. Commissioner of Education, et al., 91 NY2d 133; Bd. of Educ. of City of New York v. Mills, 293 AD2d 37). In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeals of J.J., 44 Ed Dept Rep 113, Decision No. 15,115; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960). 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 (Appeals of J.J., supra; Appeal of M.F. and J.F., supra).

Petitioner admits that J.M. engaged in a fight on school grounds, punched another student several times and broke the student's nose. Nevertheless, petitioner asserts that J.M. should not have been disciplined because he acted in self-defense. At the hearing J.M. stated that, because of prior off-campus altercations with the other student, in which J.M. was injured, J.M. felt threatened by him. J.M. also testified that during the altercation he felt threatened by the fact that 15 other students were present. He stated that he had no choice except to fight. However, the record indicates that J.M. is larger and stronger than the other student. J.M. and witnesses testified that, in response to being pushed and verbally harassed by the student, J.M. did not walk away. Instead, J.M. reacted by punching the student in the face, breaking the other student's nose. J.M. punched the other student twice more before staff members broke up the fight. Both the hearing officer and superintendent found that, despite J.M.'s claim of self-defense, he was guilty of the charge of fighting. After reviewing the record, I find no basis to overturn respondent's finding of guilt.

I also find a 13-month suspension is appropriate. As noted, J.M. admitted he was guilty of fighting, causing severe injury. He also admitted that the appropriate response in such situations is to walk away. Despite that admission, in this instance J.M. chose to fight. I note that respondent considered all the circumstances leading up to the fight. Respondent also considered the severity of J.M.'s conduct - that J.M.'s response to a push and verbal harassment was to punch the student in the face, breaking the student's nose. The record also indicates that the significant amounts of blood that resulted from the injury to the other student presented a danger to students and staff in the area.

Moreover, J.M.'s anecdotal record indicated that he had three prior disciplinary infractions, including one long-term suspension that had been reduced in response to J.M.'s plea for leniency at that time. I note that, in recommending an unusually short suspension as a penalty for the current charge, the hearing officer stated that he was throwing J.M. "the biggest bone that I have ever thrown a student." Respondent, however, determined not to grant J.M. leniency again.

In view of the severity of J.M.'s conduct, the serious injury he caused, the danger presented to others, and his prior disciplinary record, I will not substitute my judgment for that of respondent and its superintendent on penalty.

Finally, petitioner asserts, in conclusory fashion, that respondent has not complied with the requirements of Education Law �2801-a. That section requires all boards of education to adopt a school safety plan and sets forth the process to be followed in developing the plan, as well as required components of the plan. Petitioner requests that I commence an investigation to determine "the extent to which [respondent] is or is not in compliance" with Education Law �2801-a. As noted above, petitioner has the burden of proof. To the extent that she requests an investigation to establish her claim, I note that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Laurie, 42 Ed Dept Rep 313, Decision No. 14,867; Appeal of Julian, et al., 42 id. 300, Decision No. 14,861).