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Decision No. 15,303

Appeal of M.A., on behalf of V.N., from action of the Valley Stream Central High School District regarding student discipline.

Decision No. 15,303

(August 29, 2005)

Guercio & Guercio, attorneys for respondent, John P. Sheahan, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the suspension of her son, V.N., by the Board of Education of the Valley Stream Central High School District ("respondent"). The appeal must be dismissed.

V.N. is a 16 year-old student who attended tenth grade at respondent's Central High School during the 2004-2005 school year. On November 24, 2004, he entered a classroom already in session and handed a pass to the teacher, who directed him to the attendance office for being more than ten minutes late. As he left the classroom, V.N. replied to the teacher, "I should punch you in the face," and slammed the door.

By letter from the principal, dated November 29, 2004, petitioner was informed that V.N. was suspended for five days, November 29, 30 and December 1, 2, and 3, 2004, for threatening the safety and welfare of a teacher. On November 30, 2004, petitioner received notice from the superintendent that a hearing would be held on December 3, 2004 on charges of insubordination, disorderly conduct and endangering the health, safety and welfare of others, specifically threatening a staff member.

Petitioner and V.N. attended the superintendent's hearing on December 3, 2004. Both the teacher and V.N. testified about the November 24, 2004 incident and V.N. admitted to making the statement, as charged. The hearing continued on December 7, 2004 to permit petitioner to question V.N.'s guidance counselor. At the conclusion of the hearing, the hearing officer recommended that V.N. be suspended until January 10, 2005, after finding him guilty of the charges. By letter dated December 8, 2004, the superintendent adopted the recommendations of the hearing officer. On December 23, 2004, petitioner appealed the suspension to respondent. Respondent denied petitioner's appeal on January 13, 2005. This appeal ensued.

Petitioner contends that the three days' notice of the superintendent's hearing was inadequate for her to obtain counsel. Petitioner asserts that the superintendent imposed the suspension despite evidence in her son's favor. Petitioner questions the relevance of the student's disciplinary record in determining the penalty. Petitioner also contends that the suspension is part of a series of disciplinary and attendance actions taken against her son that shows bias by the principal and assistant principal. Petitioner requests that the suspension be expunged from her son's record, that her son have the opportunity to make up class work and take mid-term examinations, and that he be allowed to attend Hewlett High School in a different school district.

Respondent contends that three days' notice of the superintendent's hearing was reasonable and adequate. Respondent also contends that the hearing officer's finding of guilt is supported by the evidence, particularly V.N.'s admission. Respondent asserts that it was appropriate to consider the student's prior disciplinary record in determining the penalty and that the additional suspension for 19 days was not excessive. Respondent contends further that it provided V.N. an opportunity to make up class work and take mid-term examinations. Respondent denies that the principal or assistant principal are biased against V.N. and argues that disciplinary action was taken only when V.N. violated respondent's code of conduct. Respondent also contends that petitioner's complaints about short-term suspensions imposed during the 2004-2005 school year should be dismissed as untimely and for failure to exhaust appeals to the superintendent and board of education as required by its policy.

In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which relief is sought and a clear legal right to the relief requested (8 NYCRR �275.10; Appeal of P.M., 44 Ed Dept Rep ___, Decision No. 15,223; Appeal of T.C., 44 id. 316, Decision No. 15,186; Appeal of L.T., 44 id. 89, Decision No. 15,107).

Education Law �3214 provides for a fair hearing upon reasonable notice. What constitutes "reasonable notice" varies with the circumstances of each case (Bd. of Educ. of Monticello CSD v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of a Student with a Disability, 41 Ed Dept Rep 253, Decision No. 14,678; Appeal of J.D., 39 id. 593, Decision No. 14,322). While a single day's notice of a suspension hearing has been determined to be unreasonable (Carey v. Savino, 91 Misc. 2d 50, 52; Appeal of Eisenhauer, 33 Ed Dept Rep 604, Decision No. 13,163), I have previously found three day's notice to be adequate (Appeal of Lago, 38 Ed Dept Rep 723, Decision No. 14,126; Appeal of DeRosa, 36 id. 336, Decision No. 13,741; Appeal of Alexander, 36 id. 160, Decision No. 13,689).

In this case, it is undisputed that petitioner received the superintendent's hand-delivered notice of the charges on November 30, 2004, three days before the hearing on December 3, 2004. There is no evidence that petitioner contacted respondent prior to the hearing to suggest another date. Petitioner appeared at the hearing and made extensive comments on the record without objecting to the notice or requesting an adjournment to obtain counsel (Appeal of J.D., 39 Ed Dept Rep 593, Decision No. 14,322; Appeal of DeRosa, 36 id. 336, Decision No. 13,741). Moreover, when petitioner had additional time to obtain counsel before the hearing resumed on December 7, 2004, she did not do so. Neither did she report at that time any intention to obtain counsel or difficulty doing so. I find, therefore, that the notice in this matter was adequate.

Education Law �3214(3)(a) authorizes a school district 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." The decision to suspend a student from school 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., et al., 91 NY2d 133, 140-41; Bd. of Educ. of City School Dist. of City of New York v. Mills, 293 AD2d 37; Appeal of S.G. and J.G., 44 Ed Dept Rep 268, Decision No. 15,170). V.N.'s admission at the superintendent's hearing that he told his teacher, "I should punch you in the face," as corroborated by the classroom teacher's testimony, constitutes competent and substantial evidence to sustain the superintendent's determination of guilt (Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of L.G., 43 id. 204, Decision No. 14,971).

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of P.M., 44 Ed Dept Rep ___, Decision No. 15,223; Appeals of J.J., 44 id. 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 (Appeal of P.M., 44 Ed Dept Rep ___, Decision No. 15,223; Appeals of J.J., 44 id. 113, Decision No. 15,115). In this case, I do not find the penalty, a 19-day suspension, to be excessive, considering the hearing record, including testimony and documentation of other recent incidents of insubordination and the use of profanity by the student in his interactions with teachers.

Petitioner's contention that the principal and assistant principal are biased against her son because of his 18-month detention in a juvenile facility, is not supported by the record. Affidavits were provided by both administrators. The principal described his investigation of V.N.'s absences and disciplinary referrals and stated that V.N. was provided a copy of the code of conduct and t he opportunity to make up class work and mid-term examinations. The assistant principal described his investigation of V.N.'s disciplinary referrals and confirmed that V.N. returned to school on January 10, 2005. Petitioner did not submit a reply to these statements. I find that petitioner has not met her burden of proving this allegation.

To the extent petitioner seeks to appeal any of the short-term suspensions mentioned in her petition, her claims must be dismissed because she has not followed the appeal procedures required by respondent's code of conduct. Nothing in �3214 prevents a school district from promulgating a policy that requires exhaustion of an appeal to the superintendent and board of education for suspensions of five days or less (Appeal of Amara S., 39 Ed Dept Rep 90, Decision No. 14,182).

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