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Decision No. 15,226

Appeal of S.W., on behalf of K.W., from action of the Board of Education of the Seaford Union Free School District regarding student discipline.

Decision No. 15,226

(May 12, 2005)

Thomas C. Monaghan, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the suspension of his son, K.W., by the Board of Education of the Seaford Union Free School District ("respondent"). The appeal must be dismissed.

During the 2003-2004 school year, K.W. was an eleventh grade student attending Seaford High School. On June 14, 2004, K.W. and several classmates allegedly engaged in a hazing ritual known as "Freshman Friday" that included paddling eighth grade middle school boys on the grounds of a nearby private school.

A superintendent's hearing was held on June 22, 2004 and the hearing officer found K.W. guilty of participating in behavior that resulted in intimidation and physical assault on Seaford eighth grade middle school students. The superintendent informed petitioner by letter dated July 12, 2004 that K.W. would be suspended from school through September 24, 2005 and from participation in extracurricular activities and/or interscholastic athletics through September 24, 2005.

Petitioner appealed the suspension. Respondent sustained the superintendent's findings at its meeting on August 12, 2004. Petitioner received notice of this determination by a letter from the superintendent dated August 13, 2004. This appeal ensued. On September 22, 2004, petitioner's request for interim relief was denied.

Petitioner seeks an order reversing respondent's determination of guilt and penalty. Petitioner contends that respondent had no jurisdiction over the hazing incident because it occurred after school hours and off school grounds. Petitioner contends that the hearing process was flawed, arguing, interalia, that only hearsay evidence was presented to sustain the charge that K.W. participated in the intimidation and physical assault on eighth grade Seaford students. Petitioner also argues that the hearing officer failed to set forth findings of fact supporting his determination. Petitioner admits that his son was present at the incident but contends that he remained at the top of the stairwell and did not paddle or injure any Seaford students. Petitioner contends that the penalty is disproportionate to the offense.

Respondent contends that its jurisdiction over the incident stems from a clear nexus between the paddling and the long-standing school-related "initiation" known as "Freshman Friday," targeting eighth grade Seaford students. Respondent contends that the fact that the paddling occurred after the school day and on private property does not overcome the connection with the school district. Respondent further contends that there was substantial evidence to support the determination, including testimony from an eighth grade student who was paddled during the incident. Respondent contends that even though K.W. did not paddle students, he is responsible for his involvement in the hazing ritual by lying in wait with the other upper classmen. Respondent contends that the penalty of an additional two weeks suspension is not excessive considering the severity of the misconduct.

Because K.W. was suspended until September 24, 2004, which has passed, the appeal is moot except to the extent that petitioner seeks expungement of K.W.'s records (Appeal of M.P., 44 Ed Dept Rep 132, Decision No. 15,123; Appeal of a Student with a Disability, 43 id. 372, Decision No. 15,021; Appeal of M.K., 42 id. 405, Decision No. 14,894).

I will first consider petitioner's contention that respondent had no jurisdiction over the incident. Prior Commissioner's decisions have upheld the suspension of students for off-campus conduct (see e.g. Appeal of K.S., 43 Ed Dept Rep 492, Decision No. 15,063; Appeal of Ravick, 40 id. 262, Decision No. 14,477; 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 education process (Matter of Coghlan v. Board of Education, 262 AD2d 949, citingPollnow v. Glennon, 594 F.Supp. 220, 224, affd, 757 F2d 496). The incident for which petitioner's son was suspended involved an initiation rite perpetrated by and upon Seaford students. There is evidence in the record that there were communications among Seaford students about "Freshman Friday" prior to the incident and that eighth grade students feared going through the summer because they were told the paddling would be more severe closer to September and the beginning of their ninth grade school year. Because of the school-related nature of this incident, respondent was authorized to impose disciplinary sanctions and adjudicate this matter.

Education Law �3214[3][a] authorizes a board of education 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 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. of 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 AD2d 37; Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146). A hearing officer may draw reasonable inferences if the record supports the inference (Matter of Bd. of Educ. of Monticello CSD v. Commissioner of Education, et al., supra; Appeal of a Student with a Disability, 44 Ed Dept Rep 136, Decision No. 15,124; Appeal of B.C. and A.C., 42 id. 395, Decision No. 14,891).

At the hearing, one of the eighth grade students who was paddled testified that K.W. was present at the scene. The witness placed K.W. at the top of the stairwell while the younger students were told to go down the stairs, face the wall, and put their hands against the wall where the paddling occurred. The middle school principal testified that he met with the mother of one of the eighth grade students and observed the injuries sustained by her son, who had difficulty sitting down the following day. The hearing officer stated on the record at the conclusion of the guilt phase of the hearing that, based upon the testimony, he found K.W. guilty as a participant in the incident, although not a paddler, and proceeded to take evidence on K.W.'s disciplinary history. Based on the parties' submissions and my review of the hearing transcript, I find that the hearing officer's finding of guilt is supported by the record, and there is no basis 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 B.K. and R.K., supra; Appeal of a Student Suspected of Having a Disability, 44 Ed Dept Rep 158, Decision No. 15,131).

In support of the penalty, respondent points to the seriousness of the hazing incident that resulted in injuries to eighth grade students as part of an initiation rite to Seaford High School. Respondent argues that there can be no question that K.W.'s mere presence at the school, along with the other upper classmen, lying in wait for the eighth graders to arrive to receive their beating contributed to the scheme to intimidate these students. The middle school principal testified that he observed severe bruises on two different eighth grade students the morning of June 15, 2004. He reported meeting with the mother of one of the injured boys and interviewing five of the eighth graders who were paddled in the "Freshman Friday" incident. One of the eighth grade students testified at the hearing that, "it stung for a second" when he was hit four times and that another student "started to cry." He testified that, "I heard if you run and don't accept it, you get it worse like more hitting and harder hits, so then we just went and got it over with." Respondent also considered K.W.'s prior disciplinary record of 41 detentions and an in-school suspension for, interalia, cutting classes and leaving school grounds.

The nature of this incident, in which intimidation and physical violence was used by high school juniors to "initiate" middle school eighth graders is a threat to both the safety and security of school children. School officials must take any type of hazing seriously and act to eliminate the practice. District officials acted properly in doing so here. In light of the seriousness of this hazing incident and K.W.'s role in contributing to the intimidation of younger students, I cannot conclude that the imposition of a one-month suspension was inappropriate. As such, there is no basis to expunge K.W.'s record.

I have considered petitioner's remaining contentions and find them without merit.