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Decision No. 15,935

Appeal of R.A. from action of the Board of Education of the Bay Shore Union Free School District regarding student discipline.

Decision No. 15,935

(June 26, 2009)

Paul L. Dashefsky, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Michael G. McAlvin, Esq., of counsel

MILLS, Commissioner.--On or about December 7, 2007, petitioner commenced an appeal pursuant to Education Law §310 challenging the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) to suspend him from school until November 28, 2008.  On June 19, 2008, I issued a decision in that matter (Appeal of R.A., 47 Ed Dept Rep 504, Decision No. 15,767) in which I concluded that (1) the proof adduced at petitioner’s disciplinary hearing was insufficient to sustain the charges of “prohibited group affiliation” and “inciting violence” and (2) even if the record contained competent and substantial evidence that petitioner violated respondent’s code of conduct (“code”), the range of penalties in the code suggests that a suspension until November 28, 2008 for a first offense would be excessive.[1]

Pursuant to Article 78 of the Civil Practice Law and Rules, respondent appealed my decision to Supreme Court, Albany County.  By decision dated January 9, 2009, the Court found that “there was competent and substantial evidence to support [respondent’s] determination” and ordered that my determination concerning R.A.’s long term suspension be vacated.[2]  However, the Court found that my determination, that a one-year suspension from school was excessive, was not arbitrary or capricious.  The Court remanded the matter to me for “further proceedings with respect to the penalty to be imposed, not inconsistent with” its decision.  Accordingly, I will address the issue of penalty as directed by the Court.

Pursuant to §276.5 of the Commissioner’s regulations, the parties submitted additional affidavits and memoranda of law addressing the penalty issue.[3]  Petitioner contends that no penalty is warranted.  Respondent urges that a suspension of one calendar year is appropriate and asks that I reinstate such penalty and order petitioner to serve the remaining three months of his suspension.  In support of its position in this remand proceeding, respondent argues that the minimum penalties set forth in its code are “procedural guidelines” and that, in determining appropriate disciplinary action, school personnel may consider additional factors such as a student’s age and prior disciplinary record as well as the nature of the offense.

Respondent also argues that “[l]ong term suspensions have ... been upheld by the Commissioner where no actual physical violence occurs, but where the danger to students and staff is present”  (seeAppeal of P.K., 41 Ed Dept Rep 421, Decision No. 14,733 [student suspended for eight months for possessing a pellet gun in the school building and threatening violence toward another student]; Appeal of J.C. and P.C., 41 id. 395, Decision No. 14,723 [student suspended for one calendar year for using school laptop computer in attempt to gain unauthorized access to servers around the country, including the district’s server]; Appeal of a Student Suspected of Having a Disability, 41 id. 253, Decision No. 14,678 [student suspended for eight months for possessing a list of people he intended to kill when he turned 21]).  In upholding the suspension in Appeal of a Student Suspected of Having a Disability (41 Ed Dept Rep 253, Decision No. 14,678), I stated that “there can be no greater concern than the safety of our school children and all others within the school community.  School district officials must take threats of violence seriously ....”  This statement is clearly relevant in the context of gang affiliation and related conduct, which, as respondent points out, can pose serious safety concerns for school districts.

According to respondent’s code, for each of the charges for which petitioner was found guilty, the minimum penalty for a first offense is two days of in-school suspension; for a second offense, two days of out-of-school suspension; and for any subsequent offense, five or more days of out-of-school suspension.  Respondent notes that the “Code itself dispels the notion that the ‘minimum administrative action[s]’ are mandatory in all cases.”  Indeed, the code states, “This document in no way limits the Superintendent or the Board of Education to take action to assure safe schools, but serves as a procedural guideline.”  Respondent’s code also states that, “[i]n determining the appropriate disciplinary action, school personnel ... will consider the following:  student’s age; nature of the offense and circumstances which led to the offense; student’s prior disciplinary record; effectiveness of other forms of discipline; information from parents, teachers, and/or others; and other extenuating circumstances.”

Using respondent’s own code as a “procedural guideline” and mindful of prior Commissioner’s decisions as well as the Court’s ruling, I find that the seven-month suspension already served by R.A. is a sufficient penalty given the facts of this case.  Petitioner was approximately 18 years old at the time he engaged in prohibited group affiliation and inciting violence – conduct that poses serious safety concerns for school districts.  I agree that these offenses warrant a substantial penalty.  However, I must also consider that petitioner has no prior history of violent behavior or fighting at school.  Petitioner’s disciplinary record only shows suspensions and detentions for conduct such as missing class, “creating a disturbance, lying and [being] disrespectful.”

Under these circumstances, I find that the seven-month suspension served by petitioner is sufficient to impress upon him the seriousness of his actions.  Any further suspension of this student is unwarranted at this time. I note, however, that nothing herein should be construed as minimizing the gravity of petitioner’s actions or the serious safety issues raised by gang affiliation and related conduct in public schools.


IT IS ORDERED that R.A.’s record be modified consistent with this decision.


[1]The facts and procedural history underlying this matter are set forth in the original decision.

[2] I note that, in my original decision in this matter, I found that respondent failed to provide petitioner with proper written notice of the charged misconduct prior to his suspension as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) (Appeal of R.A., 47 Ed Dept Rep 504, Decision No. 15,767).  As a result, I ordered that the five-day suspension be “annulled and expunged” from petitioner’s record (Appeal of R.A., 47 Ed Dept Rep 504, Decision No. 15,767).  Because the Court dismissed respondent’s appeal on this issue, my decision and order regarding the five-day suspension in Appeal of R.A. (47 Ed Dept Rep 504, Decision No. 15,767) stands.

[3]As ordered by Supreme Court, the sole issue for consideration before me is the appropriate penalty to be imposed in this matter.  To the extent the parties attempt to introduce arguments and evidence not directly relevant to the penalty issue, I have not considered them.