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Decision No. 16,057

Appeal of C.D., SR., on behalf of his son C.D., from action of the Board of Education of the Oyster Bay-East Norwich Central School District regarding student discipline.

Decision No. 16,057

(May 8, 2010)

Michael G. LoRusso, P.C., attorney for petitioner, Michael G. LoRusso, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counse

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Oyster Bay-East Norwich Central School District (“respondent”) to uphold the suspension of his son, C.D.  The appeal must be dismissed.

During the 2009-2010 school year, C.D. was a student at respondent’s high school.  On September 23, 2009, C.D. was involved in a physical altercation with another student.  By letter dated September 24, 2009, petitioner was notified that C.D. was suspended for five days from September 24 through October 1, 2009.  On September 25, 2009 petitioner and his son were served with a Notice of Charges advising petitioner that a superintendent’s hearing would be conducted on September 29, 2009.  The Notice charged: (1) that C.D. “engaged in conduct which is violent or disorderly” by “engaging in a physical fight with another student, or student while on [school] premises”; and (2) that C.D. “engaged in conduct which is violent or disorderly” by failing “to follow the reasonable instructions of a faculty member when he continued to engage in a physical fight ... after being told to stop”.

Following the superintendent’s hearing, the hearing officer found C.D. guilty of the first charge and recommended that he be suspended for the remainder of the 2009-2010 school year.  By decision dated October 7, 2009, the superintendent adopted the findings of the hearing officer and suspended C.D. for the remainder of the school year.  Petitioner appealed the decision to respondent.  By letter dated November 12, 2009, respondent affirmed the superintendent’s decision.  This appeal ensued. 

Petitioner argues that respondent’s decision was arbitrary and capricious and that C.D.’s due process rights were violated.  Petitioner also asserts that the one-year penalty is harsh and excessive.  Petitioner requests that I vacate respondent’s decision and direct respondent to readmit his son.

Respondent maintains that the petition fails to state a claim and that petitioner has failed to establish a violation of C.D.’s due process rights under Education Law §3214.  Respondent also alleges that petitioner has failed to demonstrate that the penalty is excessive and requests that I reject petitioner’s attempts to add belated documents and information into the record.

First, I must address respondent’s procedural objections.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443). Accordingly, I have not considered the statement from a student identified as K.M., the letter from Reverend Kent M. Edmonston of the Mt. Olive Baptist Church or the handwritten letter from petitioner because these documents were not introduced at the superintendent’s hearing.

Next, I must reject petitioner’s claim that C.D.’s due process rights were violated.  Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of V.C., 45 id. 571, Decision No. 15,419).  What constitutes “reasonable notice” varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of a Student with a Disability, 46 Ed Dept Rep 385, Decision No. 15,540; Appeal of W.K., 46 id. 314, Decision No. 15,519). 

The record reveals that petitioner received written notice of the superintendent’s hearing on September 25, 2009, four days before the hearing.  At that time, petitioner was notified of his right to an attorney, his right to question and present witnesses and other evidence on his son’s behalf.  There is no indication in the record that petitioner requested an adjournment of the hearing.  Petitioner and his son have failed to supply any evidence to support their claim that they were denied the opportunity to question or present witnesses at the hearing.  To the contrary, the hearing transcript reveals that petitioner was given the opportunity to question the principal and assistant principal and that petitioner and his son testified at the hearing.  Therefore, upon the record before me, I find that respondent provided petitioner and his son with reasonable notice sufficient to enable the student to prepare an adequate defense and present witnesses (see, Appeal of W.K., 46 Ed Dept Rep 314, Decision No. 15,519).

The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  The record contains C.D.’s written statement in which he admitted participating in a fight in what he describes as an attempt to break it up, and then hitting another student.  In addition, a review of the hearing transcript reveals that a video of the incident from the school’s surveillance system was shown during the hearing.  Based on my review of the record, including the video, I cannot conclude that respondent’s determination was unreasonable or arbitrary.

Petitioner also claims that C.D.’s suspension was excessive.  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 J.C., 46 Ed Dept Rep 562, Decision No. 15,596; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).  C.D.’s conduct involved engaging in a fight with another student, who suffered a physical injury requiring stitches.  Striking another student is serious misconduct warranting a serious penalty.  Moreover, C.D.’s record indicates that C.D. has been involved in three prior incidents since May 2007, including threatening a teacher with violence.  Based on the record before me and the fact that this penalty is consistent with the district’s code of conduct, I cannot conclude that a suspension for the remainder of the school year is so excessive so as to warrant the substituting of my judgment for that of respondent (Appeal of M.A., 47 Ed Dept Rep 188, Decision No. 15,663; Appeal of P.M., 44 id. 437, Decision No. 15,223; Appeal of Mace, 40 id. 110, Decision No. 14,433).

In light of this disposition, I need not address the parties’ remaining contentions.