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Decision No. 16,119

Appeal of P.W., on behalf of her son A.G., from action of the Board of Education of the Marcellus Central School District regarding student discipline.

Decision No. 16,119

(August 4, 2010)

Williams, Heinl, Moody & Buschman, P.C., attorneys for petitioners, Simon K. Moody, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Subhash Viswanathan, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the Marcellus Central School District (“respondent”) to suspend her son, A.G., for one calendar year.  The appeal must be dismissed.

During the 2009-2010 school year, A.G. was an 11th grade student at respondent’s high school.  On November 16, 2009, a cafeteria worker at the high school advised the assistant principal that A.G. and another student smelled of marijuana that morning.  Both the assistant principal and principal investigated this claim, and A.G. was suspended for five days.

On November 19, 2009, a superintendent’s hearing was conducted.  At the hearing, witnesses for the district testified that, among other things, A.G. had admitted to smoking marijuana on his way to school on November 16, and that a number of items, including a scale, baggies, a large amount of cash, and a mason jar filled with an estimated 25 grams of marijuana, were discovered in A.G.’s possession.  In addition, witnesses also testified that A.G. admitted to having sold marijuana to friends, and that other students indicated that they had obtained marijuana from him.  As a result, A.G., who did not produce any witnesses or present any evidence on his own behalf, was found guilty of the charges against him, and the hearing officer recommended that he be suspended for a period of one calendar year.  Respondent’s superintendent adopted this recommendation, and petitioner appealed to respondent, which affirmed the decision.  This appeal ensued.

Petitioner argues that A.G.’s suspension is excessive in light of his limited disciplinary record, substantial academic achievements, and his willingness to engage in substance abuse counseling and treatment.  Petitioner also contends that A.G. is being punished because he did not admit that he was guilty when he was first questioned by respondent’s personnel, and she suggests that their questioning of him (which occurred prior to a parent being contacted) violated district policy.  Petitioner requests that A.G.’s suspension be modified to a period of not more than 60 days “on such terms and conditions as may be deemed appropriate in the circumstances.”

Respondent denies punishing A.G. for initially denying his guilt and argues that the length of his suspension is justified by the seriousness of his conduct as established at the superintendent’s hearing.  In addition, respondent denies having a policy that requires that parents be contacted before a student is questioned by school personnel.

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).  I do not find that the length of A.G.’s suspension is excessive.  While it is clear that A.G. has a solid academic record, it is undisputed that he was found in possession of an estimated 25 grams of marijuana on school property.  A suspension of one calendar year for such conduct is consistent with previous Commissioner’s decisions (seee.g.Appeal of J.C., 46 Ed Dept Rep 562, Decision No. 15,596, eight month suspension for possessing 12 grams of marijuana; Appeal of N.V., 46 id. 138, Decision No. 15,466, three-semester suspension for possession of 28 grams of marijuana deemed sufficient punishment).  I am unable to find that respondent’s determination was arbitrary, capricious or unreasonable.

Petitioner has also failed to establish that respondent’s assistant principal violated school policy by failing to contact A.G.’s parents before questioning him.  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).  There is no legal requirement that a parent be contacted prior to (or be present during) an administrative investigation by school personnel of an incident involving student conduct (seeAppeal of Hyde, 38 Ed Dept Rep 719, Decision No. 14,125; Appeal of Phyllis and Marc B., 38 id. 301, Decision No. 14,039), and petitioner has not proven that respondent has adopted such a policy.  While petitioner attempts to cite to a “Drug/Alcohol Possession and Use” policy which calls for an immediate five-day suspension and parent contact if students are suspected of using or possessing drugs or alcohol on school property, I am unable to find that this policy relates to the conduct of investigations or the questioning of students by district personnel prior to the imposition of a suspension.  Petitioner, therefore, has failed to meet her burden on this issue.