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Decision No. 15,848

Appeal of J.R. and N.R., on behalf of their son P.R., from action of the Board of Education of the Jamesville-DeWitt Central School District regarding student discipline.

Decision No. 15,848

(November 13, 2008)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Jamesville-DeWitt Central School District (“respondent”) to uphold the suspension of their son, P.R.  The appeal must be dismissed.

On September 22, 2006, during a second period class at respondent’s high school, P.R.’s friend, D.J., became visibly incapacitated apparently due to ingestion of some substance.  D.J. was brought to the main office and “911” was called to obtain emergency medical treatment.  School officials learned from the student that he had taken multiple prescription drugs.  P.R. had been observed with D.J. during a first period class and between the classes just prior to the incident.  In an effort to determine exactly what substances D.J. had ingested and whether there were more on school grounds, P.R. was summoned from class to the office.  He was questioned by the vice principal in the presence of two aides and denied any knowledge of what substances D.J. might have ingested.  In an affidavit, P.R. avers that the vice principal then reached into P.R.’s pockets, discovering a pocket knife.  Affidavits submitted by both the vice principal and one of the aides aver, instead, that the vice principal requested that P.R. empty his pockets and that P.R. did so, revealing the knife.

That same day, based on the discovery of the pocket knife, P.R. was charged with possession of a weapon on school grounds and was suspended from school for five days.    The principal also requested a superintendent’s hearing to determine whether a further suspension was warranted.

By letter dated and hand-delivered on September 22, 2006, the principal notified J.R. of the suspension and request for the superintendent’s hearing and also informed J.R. of his rights to an immediate informal conference with the principal and to question complaining witnesses.  The letter further stated that, because the principal determined that P.R.’s presence in school posed a continuing danger and threat, the informal conference, if requested, would take place as soon as possible after the beginning of the suspension, in accordance with Education Law §3214(3)(b). 

On Monday, September 25, 2006, J.R. provided the vice principal with documentation pertaining to the definition of “weapon”.  On Tuesday, September 26, 2006, J.R. attended an informal conference with the principal and superintendent.  After the conference, the superintendent determined not to go forward with a hearing and deferred to the principal on whether to annul the five day suspension.  J.R. was permitted to submit additional information regarding the definition of “weapon”.  On October 3, 2006, the vice principal informed J.R. of the principal’s decision to uphold the five-day suspension.

Thereafter, J.R. appealed the principal’s decision to the superintendent.  By letter dated October 19, 2006, the superintendent notified J.R. that she upheld the suspension.  On January 29, 2007, J.R. appealed to respondent which, by letter dated January 30, 2007, upheld the five-day suspension.  This appeal ensued.

Petitioners assert that the discovery of the pocket knife was the result of an impermissible search.  They also contend that the pocket knife which was the basis of the charge does not constitute a “weapon” warranting suspension.  They also assert that the five-day suspension was excessive.  Petitioners seek annulment of the finding of guilt and expungement of P.R.’s record.  Finally, petitioners claim that, although P.R. received alternative instruction during the five-day suspension period, he was marked absent each day.  They ask that the absences be removed from his record. 

Respondent denies petitioners’ claims challenging the suspension and seeks dismissal of the appeal.  With respect to petitioners’ complaint regarding the recording of absences, respondent maintains this was done in error and indicates that P.R.’s attendance records were corrected.

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).

The Fourth Amendment to the United States Constitution prohibits government officials from conducting unreasonable searches and seizures.  In New Jersey v. T.L.O., 469 US 325 (“T.L.O.”), the United States Supreme Court held that the prohibition extends to searches by public school officials.  However, the Court also recognized the uniqueness of the school setting and the need to balance a student’s legitimate expectation of privacy against the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds (id.).  The legality of a search depends upon the reasonableness, under all circumstances, of the search (id.). 

Determining reasonableness involves a two-fold inquiry: 1) whether the search was “justified at its inception”, that is, whether there are reasonable grounds for suspecting that the search will reveal evidence that the student has violated or is violating either the law or the rules of the school; and 2) whether the search as actually conducted “was reasonably related in scope to the circumstances which justified [it]... in the first place” (T.L.O. at 341, citing Terry v. Ohio, 392 US 1).  The Court stated that the search will be permissible in scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction (T.L.O. at 342). 

In Matter of Gregory M., the New York Court of Appeals held that, for a search of a student’s person and belongings, the “reasonable suspicion” standard established in T.L.O. for Fourth Amendment purposes is also appropriate under the New York State Constitution which further guarantees the right to be free from unreasonable searches and seizures (Matter of Gregory M., 82 NY2d 588).  The court in Gregory M. noted that T.L.O. employed a balancing of interests analysis similar to that of People v. Scott D., 34 NY2d 483, which held that, among the factors to be considered in determining the sufficiency of cause to search a student are the child’s age, history and record in school, the prevalence and seriousness of the problem in the school to which the search is directed and, of course, the exigency to make the search without delay.

Initially, I note that the parties dispute whether the vice principal reached into P.R.’s pockets or whether P.R. emptied them at the vice principal’s request.  On the record before me, I find that the two affidavits submitted by respondent outweigh P.R.’s assertion and establish that P.R. was asked to empty his pockets and did so.  However, that does not end the inquiry, as a request to empty pockets has been deemed to be the equivalent of searching the pockets themselves (Matter of Bernard G., 247 AD2d 91).

Under the circumstances presented here and balancing the relevant interests, I conclude that the search of P.R. was permissible.  The high school administrators were responding to an emergency situation where a student (D.J.) ingested unknown drugs and was sufficiently ill to warrant calling emergency services.  P.R. had been with D.J. just prior to his becoming ill.  Given the proximity in time of P.R.’s contact with D.J. prior to D.J.’s illness, the exigency of the need to assist D.J. and the concern that the drugs D.J. had ingested were present in the school, the search of P.R.’s pockets under the circumstances was justified.  In addition, I find that the request that P.R. empty his pockets was minimally intrusive and reasonably related in scope to the circumstances presented.

Petitioners assert that the pocket knife found on P.R., with a one and three quarters inch long blade, does not meet the definition of weapon and that, consequently, P.R. should not have been found guilty of possession of a weapon at school.  In support of their claim, petitioners submit a copy of Part 201 of the Commissioner’s regulations.  However, Part 201 pertains only to discipline of students with disabilities and, as P.R. is not a student with a disability, it is inapplicable.  Petitioners also submit several documents regarding the definition of a weapon – the source of which are not clear but appear to come from websites of unrelated school districts and organizations.  Moreover, the portions of a fact sheet on student suspensions relied on by petitioners pertain to certain requirements of the federal Gun Free Schools Act (20 USC §7151) which are not relevant here. 

Respondent’s code of conduct sets forth several types of prohibited student conduct including: “Possessing a weapon”.  Weapon is defined, in pertinent part, as “a gun,... dagger, dirk, razor, stiletto, switchblade knife, gravity knife, metal knuckle knife, box cutters ... or other dangerous instrument that can cause physical injury or death.”  Petitioners correctly assert that a pocket knife is not among the specific knives listed in the definition of weapon.  However, the decision of the superintendent, upheld by respondent, states that a pocket knife is a weapon within the meaning of the district’s code of conduct because it is considered an instrument that can cause physical injury or death.  Affidavits by both the principal and superintendent reiterate this position and the superintendent avers that the district has consistently applied this interpretation.  I find that such interpretation is reasonable.  Thus, petitioners have failed to establish a basis for annulling respondent’s determination of guilt on the charge of possessing a weapon at school.  

Petitioners further claim that the five-day suspension was an “extreme punishment”.  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 do not find a five-day suspension for possession of a knife in school to be an excessive penalty and I decline to substitute my judgment for respondent’s.

Finally, petitioners complain that P.R. was marked absent during the five-day suspension period, even though he received alternative instruction. Respondent indicates that this was an error that has since been corrected.  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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Since P.R.’s attendance record has been corrected, this claim must be dismissed as moot.