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Decision No. 15,483

Appeal of J.F. and J.F., on behalf of their son J.F., from action of the Board of Education of the Baldwinsville Central School District regarding student discipline.

Decision No. 15,483

(November 7, 2006)

Dunn Law Office, attorneys for petitioner, Edward P. Dunn, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Marc Reitz and Norman H. Gross, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Baldwinsville Central School District (“respondent”) to suspend their son, J.F., from school for the period from March 13, 2006 through the end of the 2005-2006 school year.  The appeal must be dismissed.

On March 13, 2006, at approximately 9:53 a.m., the principal at respondent’s middle school received a text message on his district cell phone which read, “bringing my Dad [sic] gun to school tomorrow, [expletive].”  The principal reported this incident to the school resource officer, who in turn, contacted the sheriff’s department.  Approximately 15 minutes later, several sheriffs arrived and school officials were advised to place the school in a “lock out” mode.  Only students who had scheduled excuses and were accompanied by parents were permitted to leave.

A warrant was obtained for the purpose of tracing the number of the cell phone that sent the text message.  At approximately 2:00 p.m., law enforcement officials identified the telephone number as belonging to J.F.’s father.  The principal then summoned J.F.’s mother, who worked in the school.  She advised the principal that the telephone belonged to her son, J.F., an eleventh grade student at respondent’s high school.

Law enforcement officials interviewed J.F. with his parents present, and J.F. was suspended for five days pending a superintendent’s hearing pursuant to Education Law §3214(3).  By notice and letter dated March 14, 2006, respondent’s superintendent notified petitioners that J.F. was charged with “Reckless Endangerment/Threat to an Administrator” and that a superintendent’s hearing was scheduled for March 17, 2006.  The assistant superintendent conducted the hearing.  By letter dated March 20, 2006, the superintendent advised petitioners that J.F. was suspended for the remainder of the school year.

Petitioners appealed the superintendent’s decision to respondent.  On March 24, 2006, respondent convened to review the record of the hearing and upheld the superintendent’s determination.  This appeal ensued.

Petitioners contend that J.F. never intended to bring a gun to school or to harm or threaten anyone. They argue that J.F. meant to send the text message to a friend as a joke but that it was accidentally sent to the principal.  Petitioners further allege that J.F.’s due process rights were violated because he was not aware of the charges against him and the hearing officer was biased.  Petitioners also state that J.F.’s suspension for the remainder of the school year was harsh and excessive in light of the character references provided by J.F.’s mother and the assistant principal of the high school, the unintentional nature of the act and the fact that J.F. had no prior history of discipline problems.  Petitioners request that respondent’s decision be set aside, that the suspension be rescinded and that any information pertaining to this incident be expunged from J.F.’s records.

Respondent contends that there is competent and substantial evidence that J.F. made a credible threat to bring a weapon to school.  Respondent further contends that petitioners have failed to demonstrate that the hearing officer was biased or that J.F.’s due process rights were violated and that the suspension was proportionate to the offense.

As an initial matter, since the 2005-2006 school year has ended, petitioners’ request to have J.F. reinstated must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  However, the appeal is not moot to the extent that petitioners seek expungement of the disciplinary suspension from their son’s records (Appeal of N.C., 42 Ed Dept Rep 119, Decision No. 14,794; Appeal of K.M., 41 id. 318, Decision No. 14,699).

Petitioners claim that they were denied due process because the notice of hearing did not adequately explain the charges of recklessness or threat to an administrator and failed to specifically state how J.F.’s text message violated respondent’s code of conduct.  The Court of Appeals has held that charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of a Student with a Disability, 39 Ed Dept Rep 427, Decision No. 14,278).  In the notice of hearing dated March 14, 2006, the superintendent advised petitioners that J.F. was “charged with Reckless Endangerment/Threat to an Administrator” and the notice specifically identified the alleged conduct that the charges were based on.  Under these circumstances, I do not find a due process violation.

Petitioners further allege that the hearing officer presumed J.F.’s guilt prior to the hearing and demonstrated bias at the hearing, thereby abridging J.F.’s due process rights.  Due process is not violated unless the hearing officer with prior knowledge of the underlying event allows this prior knowledge to improperly influence his decision or uses his prior knowledge as a basis for his decision as an alternative to evidence presented during the hearing (Appeal of A.G., 41 Ed Dept Rep 262, Decision No. 14,681; Appeal of Aldith L., 39 id. 291, Decision No. 14,241).  In this case, before any evidence was presented, the hearing officer said, “I think that [it] has been pretty well acknowledged that you sent that message...I will make the finding of guilty...there’s no doubt that you committed the act,” after which J.F. admitted his guilt.  It is clear that the hearing officer’s determination was influenced by his personal knowledge of events.  While this is clearly improper, it does not alter the fact that J.F. admitted to sending the text message.   However, I admonish respondent to revise its procedures to ensure that future superintendent's hearings are conducted in an impartial manner and that determinations are based on properly introduced and accepted evidence (seeAppeal of A.G., 41 Ed Dept Rep 262, Decision No. 14,681; Appeal of Snowberger, 24 id. 256, Decision No. 11,386).

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 Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107). Where a student admits the charged conduct, the admission is sufficient proof of guilt (seee.g.Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960; Appeal of P.K., 41 id. 421, Decision No. 14,733).  J.F. admitted sending the text message at the hearing and statements of apology were provided to the hearing officer by J.F. and his mother.  Accordingly, I find no basis to overturn respondent’s finding of guilt.

With regard to the penalty, 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 of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).  In light of the serious nature of J.F.’s threat, I cannot conclude that a three and one-half months suspension was inappropriate (seee.g., Appeal of Leahy, 39 id. 375 Decision No. 14,264 [one year suspension upheld where student e-mailed bomb threat]; Appeal of Ravick., 40 id. 262, Decision No. 14,477 [15 month suspension upheld for anti-Semitic e-mail]).  Accordingly, I decline to substitute my judgment for that of respondent.