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Decision No. 16,091

Appeal of J.S., on behalf of his son H.S., from action of the Board of Education of the Cobleskill-Richmondville Central School District regarding student discipline.

Decision No. 16,091

(July 10, 2010)

Parshall & West, attorneys for respondent, Michael A. West, Esq., of counsel

STEINER, Commissioenr.--Petitioner appeals the suspension of his son, H.S., by the Board of Education of the Cobleskill-Richmondville Central School District (“respondent”).  The appeal must be dismissed.

During the 2009-2010 school year, H.S. was an 11th grade student at respondent’s high school.  By letter dated December 7, 2009, petitioner was notified that H.S. would be suspended for five days for bringing marijuana to school, selling it and distributing it to fellow students in violation of the school’s code of conduct and the district’s drug and alcohol policy.  In a separate letter, petitioner was notified that a superintendent’s hearing would be held.

At the superintendent’s hearing, which took place on December 11, 2009, respondent’s assistant principal testified that during an investigation he was conducting of drug related possessions and sales at the school, H.S. was implicated as the source of at least two sales of marijuana in September 2009.  Following the assistant principal’s testimony, two students testified that they bought marijuana from H.S. during the second week of September 2009.  Although H.S. denied that he ever brought or sold marijuana on school property, the hearing officer found him guilty of three charges: possession of marijuana on school grounds, possession of marijuana on school grounds with intent to sell, and sale and/or distribution of marijuana on school grounds.  A one year suspension was recommended by the hearing officer.  On January 5, 2010, the superintendent adopted the hearing officer’s recommendation and suspended H.S. for one year with eligibility for reinstatement beginning September 1, 2010.  On appeal, respondent affirmed the superintendent’s decision.  This appeal ensued.  Interim relief was denied on February 11, 2010.

Petitioner argues that the evidence presented at the hearing was insufficient to sustain the charges against his son.  Petitioner also argues that the penalty was excessive.  Petitioner requests reimbursement of tutoring costs for H.S.

Respondent contends that its actions were not arbitrary, capricious or excessive and that the Commissioner should not substitute his judgment for that of the hearing officer as to the credibility of witnesses and the weight to be given to the witnesses’ testimony.

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).

In this matter, two students testified that they bought marijuana from H.S. on school grounds.  A third student, who is a friend of H.S., testified that although he previously made statements to the police and school officials that he sold marijuana to H.S. in September 2009, those statements were false.  This witness did, however, admit to buying marijuana from H.S. within the last year or two, off school grounds.  In his decision, the hearing officer stated that he found the testimony of the first two students to be credible and the testimony of the third student to be perjurous, evasive and not credible or believable.  With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).  I find there is sufficient evidence in the record to conclude that H.S. sold marijuana on at least two occasions, on school property.  Thus, I find no basis to overturn the hearing officer’s findings or determination of guilt.

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).  Respondent argues that the possession and sale of marijuana on school grounds endangers the safety, morals, health and welfare of H.S. and other students and adults and therefore warrants a serious penalty.  It also states that it has attempted to issue consistently tough penalties when dealing with students who use, distribute or possess drugs in school.

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  On the record before me, petitioner has not met his burden of establishing that H.S.’s suspension of one year, with the possibility of returning to school in September 2010, is excessive.  Accordingly, I will not substitute my judgment for that of respondent’s.

Finally, petitioner requests that I order respondent to reimburse him for the cost of tutoring H.S.  The record demonstrates that H.S. is over the age of compulsory education and thus, the district is not required to provide him with alternative instruction.  Moreover, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).