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Decision No. 16,168

Appeal of a STUDENT WITH A DISABILITY by his stepfather, from action of the Board of Education of the City School District of the City of Hudson regarding student discipline.

Decision No. 16,168

(November 30, 2010)

Douglas E. Coleman, Esq., attorney for petitioner

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Neelanjan Choudhury, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Hudson (“respondent”) to uphold the suspension of his stepson.  The appeal must be dismissed.

Petitioner’s stepson was an 11th grade student with a disability (“student”) attending Hudson City high school during the 2009-2010 school year.  On October 8, 2009, a teacher’s aide observed what appeared to be a knife sticking out of the student’s pocket.  The parties do not agree as to what happened next.  Respondent states that the teacher’s aide questioned the student and he handed the knife over to her.  Petitioner states that the teacher’s aide “pulled the item out of his pocket”.  The student was then brought to the assistant principal’s office where he admitted to possessing the knife.  The student was suspended for five days, and in a letter dated October 13, 2009, the superintendent provided notice that a superintendent’s hearing would be held and indicated the student was charged with conduct that was insubordinate and/or disorderly and/or conduct that endangered the health and/or morals and/or safety and/or welfare of others based upon two violations of respondent’s code of conduct (“code”).  Specifically, he was charged with engaging in violent conduct by possessing a weapon, a knife with a three-inch locking serrated blade, and displaying it in the school building.

By letter dated October 19, 2009, petitioner’s attorney objected to the notice of hearing as insufficient.  Prior to the hearing, the Committee on Special Education (“CSE”) determined that the misconduct was not a manifestation of the student’s disability.  The hearing was held on October 20, 2009 and the student was found guilty of the charge of possession of a weapon.  The superintendent accepted the hearing officer’s findings and suspended the student through November 11, 2009.  Petitioner appealed the suspension.  On November 12, 2009, respondent upheld the superintendent’s decision.  This appeal ensued.

Petitioner argues that the notice of the superintendent’s hearing was insufficient.  Petitioner also argues that the knife does not constitute a “weapon” as that term is defined in respondent’s code.  Additionally, petitioner asserts that the decision lacked a rational basis because it was based on hearsay evidence only.  Petitioner also argues that the discovery of the knife by the teacher’s aide constituted an impermissible search under the Fourth Amendment to the United States Constitution and that the penalty imposed was excessive.  Petitioner asks that the suspension be annulled and expunged from the student’s record.

Respondent argues that the appeal should be dismissed because the student was properly found guilty of violating the code.  Respondent also asserts that the student’s Fourth Amendment rights were not violated, the notice was reasonable and the penalty imposed was not unduly harsh or excessive.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner argues that respondent’s notice was insufficient because it did not state how the weapon was possessed or displayed.  The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings (Bd. of Educ. of Monticello Cent. School Dist. at 136).

In the notice of hearing dated October 13, 2009, the superintendent advised the student of two charges against him stemming from bringing a knife to school on October 8, 2009.  Although the description of the charges did not describe how the weapon was possessed or displayed, it stated the date of the incident, the student’s name, applicable sections of the code and included a description of the knife.  Therefore, I find that the student was provided sufficiently specific notice to enable him to prepare and present an adequate defense.

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.; seealsoAppeal of J.R. and N.R., 48 Ed Dept Rep 239, Decision No. 15,848).

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; seealsoAppeal of J.R. and N.R., 48 Ed Dept Rep 239, Decision No. 15,848).

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 (seealsoAppeal of J.R. and N.R., 48 Ed Dept Rep 239, Decision No. 15,848).

I note that the parties dispute whether the teacher’s aide reached into the student’s pocket or whether the student handed her the knife at her request.  The teacher’s aide did not testify at the hearing and the only evidence submitted on this matter was the testimony of the assistant principal, who conducted the investigation of the incident.  He testified that according to the teacher’s aide, she questioned the student about what was in his pocket when she saw what appeared to be a knife protruding out of his pocket.  He further testified that according to the teacher’s aide the student willingly produced the knife from his pocket and relinquished it.  Petitioner submitted no evidence to the contrary.  On the record before me, I find that the knife was willingly surrendered by petitioner to the teacher’s aide when she questioned him about what was in his pocket.  However, that does not necessarily end the inquiry, as in searches conducted outside of a school context, a request to empty pockets has been deemed to be the equivalent of searching the pockets themselves (Matter of Bernard G., 247 AD2d 91; seealsoAppeal of J.R. and N.R., 48 Ed Dept Rep 239, Decision No. 15,848).

Under the circumstances presented here I conclude that the search of the student by the teacher’s aide was permissible.  The teacher’s aide questioned the student upon seeing something protruding from his pocket, which appeared to her to be a knife.  It is unclear whether the student was asked to empty his pocket, or upon being questioned about what was in his pocket, he produced the knife.  Even if the teacher’s aide requested that the student empty the contents of his pocket, I find that the request was reasonable and minimally intrusive in light of what she observed and the concern of having a student in possession of a weapon on school grounds.

Petitioner asserts that the knife found on his son is not a weapon as defined in the district’s code.  The definition of “weapon” in the code does not include a general reference to a knife but rather delineates specific types of knives such as: “dagger, dirk, razor, stiletto, switchblade knife, metal knuckle knife, box cutters, cane sword . . . .”  The definition also includes the following general language: “or other device, instrument, material or substance that can cause physical injury when used to cause physical injury or death.”  The hearing officer relied on this portion of the definition when she determined that the knife was a weapon.

Petitioner argues, and I agree, that the knife does not fall within the latter definition of weapon because in this case it was not used to cause physical injury or death.  The type of knife brought to school by the student, is described as a “knife with a three-inch locking serrated blade,” and respondent’s definition of “weapon” lists various types of knives but does not reference knives generally.  However, I reject petitioner’s hyper-technical argument that the charges must be dismissed based upon respondent’s failure to clearly identify this type of knife as a weapon.  No reasonable person could assume that it is acceptable behavior for a student to bring a knife with a three-inch locking serrated blade to school, particularly under a code of conduct that lists various types of knives, including box cutters, as weapons.  Such behavior clearly is disruptive and endangers the health and safety of others.  In any case, the dictionary definition of “dagger,” which is one of the types of knives enumerated in respondent’s definition of a “weapon” is sufficiently broad that it could encompass the knife possessed by petitioner’s son[1].  I therefore find that the knife at issue was a prohibited weapon under respondent’s code.  I recommend, however, that respondent review its policy to avoid any future claims of ambiguity.

Petitioner further claims that the hearing officer’s decision was not based on competent or substantial evidence because the evidence presented at the hearing was entirely hearsay.  However, hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (seeBd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Here, the assistant principal who conducted the investigation testified that the student admitted to possessing the knife in school and that the knife was his.  Under these circumstances, I find there is competent and substantial evidence to support the finding that the student possessed a weapon on school grounds.

Finally, petitioner claims that the punishment 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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).  I cannot conclude that the imposition of a 20-day suspension for possession of a knife in school was an excessive penalty and I decline to substitute my judgment for that of respondent (Appeal of D.C., 43 Ed Dept Rep 217, Decision No. 14,976; Appeal of M.G., 41 id. 58, Decision No. 14,614).



[1]“Dagger” is defined in the current Merriam-Webster Online Dictionary as a “sharp pointed knife for stabbing.”