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Decision No. 15,503

Appeal of D.T., on behalf of her son J.L., from action of the Board of Education of the Somers Central School District regarding student discipline.

Decision No. 15,503

(December 22, 2006)

Law Office of Peter D. Hoffman, P.C., attorneys for petitioner, Peter D. Hoffman and Stuart Goldberg, Esqs., of counsel

Keane & Beane, P.C., attorneys for respondent, Lawrence Praga, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Somers Central School District (“respondent”) to suspend her son, J.L.  The appeal must be dismissed.

During the 2004-2005 school year, J.L. attended tenth grade at respondent’s high school.  In May 2005, J.L. and two other students were charged with stealing several items from locked gym lockers, including i-Pods, calculators and a cell phone.  J.L. admitted his involvement in the theft and was found guilty at a superintendent’s hearing on May 20, 2005.

During the penalty phase of the hearing, which was not recorded, the superintendent suspended J.L. until June 24, 2005.  Petitioner appealed this decision.  Respondent affirmed the superintendent’s finding of guilt, but asked the superintendent to reopen the penalty hearing so that evidence and testimony could be taken on the record.

The second penalty hearing took place on July 5, 2005. At the hearing, petitioner alleged that in October 2004, J.L. had been the victim of racial slurs and physical assault by other students in the lunch room.  Petitioner asserted that respondent failed to address the incident.  Petitioner also introduced the testimony of a psychologist who explained that J.L.’s participation in the 2005 theft was motivated by his anger and frustration over the 2004 assault and respondent’s failure to adequately address the situation.

On July 6, 2005, the superintendent imposed the same penalty.  Petitioner appealed and respondent affirmed the penalty on September 1, 2005.  This appeal ensued.

Petitioner claims that the penalty is excessive and that respondent failed to consider the 2004 assault as mitigating evidence in determining J.L.’s penalty.  Petitioner seeks expungement of J.L.’s records.  Respondent maintains that the evidence of the alleged assault was not relevant to the 2005 theft and that J.L.’s suspension was appropriate. 

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 this case, J.L. admitted his involvement in the 2005 theft of several items from other students’ locked lockers, including i-Pods, calculators and a cell phone.  Theft is a serious offense, and the record shows that J.L. was involved in two such incidents during the 2004-2005 school year.  Moreover, respondent’s code of conduct specifies that an out-of-school suspension is warranted for a second infraction of stealing.  Therefore, on the record before me, I cannot conclude that respondent’s decision to suspend J.L. for less than one month was excessive.

I also reject petitioner’s argument that respondent failed to consider relevant mitigating evidence.  Respondent stated in its September 1, 2005 decision that evidence of the alleged 2004 assault was not relevant to the 2005 theft.  Respondent’s decision also notes that even  if the evidence was relevant, it would not have justified J.L.’s participation in the 2005 theft.  Under these circumstances, I find no basis to disturb the penalty imposed by respondent.