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Decision No. 15,596

Appeal of J.C., on behalf of his son K.C., from action of the Board of Education of the Webster Central School District regarding student discipline.

Decision No. 15,596

(June 14, 2007)

Joyce Berkowitz, Esq., attorney for petitioner

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Susan Johns, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Webster Central School District (“respondent”) to suspend his son, K.C.  The appeal must be dismissed.

During the 2006-2007 school year, K.C. was a ninth grade student in respondent’s high school.  On October 23, 2006, K.C. allegedly forged a permission slip from his father, left school without permission and went to a skating rink where he met a friend whom K.C. owed money.  At the skating rink, K.C.’s friend left K.C. alone with another male who allegedly approached K.C., handed him a soda bottle containing marijuana and told K.C. that if he delivered the bottle of marijuana to a certain student at the high school the next day, he could settle the debt with his friend.

On October 24, 2006, K.C. brought 12 grams of marijuana sealed in multiple bags, in a soda bottle to the high school bathroom and waited for the student.  An administrator discovered K.C. with the soda bottle, and the principal suspended K.C. for five days pending a superintendent’s hearing. 

K.C. was charged with endangering the health, welfare and safety of himself and others, by possessing marijuana.  Following a superintendent’s hearing held on October 30, 2006, the hearing officer recommended that K.C. be suspended for the remainder of the 2006-2007 school year.  By letter dated November 2, 2006, the superintendent adopted the findings of the hearing officer.  Petitioner appealed, and by letter dated January 18, 2007, petitioner was advised that respondent upheld the superintendent’s determination.  This appeal ensued. Petitioner’s request for interim relief was denied on March 21, 2007.

There is no dispute that K.C. is guilty of the charges.  However, petitioner alleges that K.C.’s suspension for the remainder of the 2006-2007 school year is harsh and excessive, particularly in light of the personal problems that he has endured over his lifetime.  Petitioner also contends that respondent is refusing to provide academic intervention services (“AIS”) to K.C. during his suspension.

Respondent counters that an eight-month suspension is consistent with respondent’s code of conduct and previous Commissioner’s decisions.  Respondent also alleges that K.C. is receiving adequate alternative instruction while on suspension.

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).  I find that an eight-month suspension from school for possession of approximately 12 grams of marijuana is proportionate to the offense, and is consistent with previous Commissioner’s decisions (seeAppeal of N.V., 46 Ed Dept Rep 138, Decision No. 15,466, three-semester suspension for possession of 28 grams of marijuana).  Thus, there is no basis for substitution of my judgment for that of respondent. 

Petitioner also argues that K.C. received AIS in English/Language Arts, social studies and science prior to his suspension and that respondent is refusing to provide such services during K.C.’s suspension.  Pursuant to §276.5 of the Commissioner’s regulations, my Office of Counsel asked respondent to submit affidavits from appropriate school personnel to address the basis of K.C.’s eligibility for AIS, and the nature of the AIS provided before and after suspension.  In reply, respondent submitted a supplemental affidavit from the principal, with a copy of the district’s AIS compliance plan, describing the services that K.C. is receiving during his suspension. 

Section 100.2(ee)(3) of the Commissioner’s regulations requires schools to provide AIS for students in grades 9 to 12 when students score below the State designated performance level on one or more of the State intermediate assessments in English language arts, mathematics, social studies or science, or are at risk of not meeting State standards in those areas.  Students in grades 9 to 12 are also eligible if they score below the State designated performance level on any one of the State examinations required for graduation, or are Limited English Proficient (LEP) and are determined to be at risk of not meeting State standards in the designated areas (8 NYCRR §100.2[ee][3]).  Schools are obligated to provide AIS until a student’s performance: (a) meets or exceeds the State designated performance level on the next State assessment; or (b) is shown to be likely to meet or exceed the State designated performance level on the next State assessment through achievement on ... district-selected assessments (see 8 NYCRR §100.2[ee][5][iv]).   Thus, a student’s right to AIS continues during a period of suspension unless and until the student’s performance meets the aforementioned criteria.

The principal of respondent’s high school states that K.C. began receiving AIS in September 2006, and specifically received “ongoing review” in English language arts and science and a “study lab” in social studies.  The principal described “ongoing review” as monitoring of the student’s performance by a teacher who meets with the grade level teachers at least four times per year to review the student’s progress.  The principal further clarified that the “study lab” K.C. was receiving was provided at the high school for 40 minutes every other day in a group of seven to nine students.

The principal confirmed that K.C. continues to receive “ongoing review” in the areas of English language arts and science during his suspension from the high school.  Specifically, he explained that K.C. receives one-on-one instruction from a tutor who is certified in the applicable subject area and the tutor is in contact with the classroom teacher regarding K.C.’s performance.  He also indicated that the grade level teams continue to review K.C.’s progress at least four times per year.  The record further reveals that K.C. receives one-on-one instruction in social studies, where the tutor assists K.C. with class work, homework and test reviews, which is similar to the instruction he received in study lab.  Therefore, based on the record before me, I find that respondent is providing K.C. with AIS of a comparable nature and extent to that which it provided prior to K.C.’s suspension.  Accordingly, petitioner’s claims regarding AIS must be dismissed.