Appeal of T.C., on behalf of her son J.C., from action of the Board of Education of the Freeport Union Free School District regarding student discipline.

Decision No. 15,697

(December 14, 2007)

Ian Heller, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, J.C., by the Board of Education of the Freeport Union Free School District (“respondent”).  The appeal must be dismissed.

This appeal arises from an incident that occurred on December 12, 2006 at respondent’s Freeport High School (“school”).  At approximately 7:20 a.m., a group of three or four students, including J.C., allegedly intimidated, bullied and harassed another student in a locked classroom.  The school’s principal suspended J.C. for five days for “intimidation, harassment or bullying without a weapon,” an alleged violation of respondent’s code of conduct.

On December 18, 2006, a superintendent’s hearing was held at which J.C. was found guilty as charged.  The hearing officer recommended that J.C. be suspended through June 22, 2007 and that he be allowed to return to school on September 6, 2007.  Later that day, respondent’s superintendent adopted the hearing officer’s findings and suspended J.C. through June 22, 2007.  In addition, respondent’s superintendent also prohibited J.C. from attending summer school.  By letter dated January 3, 2007, petitioner appealed this determination to respondent which, on January 11, 2007, upheld the superintendent’s decision.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 1, 2007.

Petitioner does not challenge respondent’s determination of guilt, but argues that her son’s suspension is excessive, that he should be returned to school and that his record should be edited or expunged.  Respondent denies that the penalty is excessive and asserts among other things that J.C.’s suspension was justified by both his anecdotal record and prior Commissioner’s decisions.

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 an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Petitioner’s son was found guilty of “intimidation, harassment or bullying without a weapon.”  Petitioner does not dispute this or explain why she feels that her son’s punishment was disproportionate to the offense.  Rather, petitioner does little more than allege, in conclusory fashion, that her son’s punishment was “so excessive” that I should substitute my judgment for that of respondent.  While a suspension for six months plus summer school may be severe in certain circumstances, I am unable to find on the record before me that petitioner has met her burden in demonstrating that it is excessive here.  Moreover, the suspension has been served and I will not substitute my judgment for that of respondent.  Petitioner’s appeal must therefore be dismissed.

In light of the foregoing disposition, I need not address respondent’s remaining contentions.

THE APPEAL IS DISMISSED

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