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Decision No. 17,311

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Smithtown Central School District regarding student discipline.

Decision No. 17,311

(January 24, 2018)

Law Offices of David P. Fallon, PLLC, attorneys for petitioner, David P. Fallon, Esq., of counsel

Lamb & Barnosky, LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Smithtown Central School District to suspend his son (“the student”) for one year.  The appeal must be dismissed.

During the 2016-2017 school year, the student was a ninth-grade student in respondent’s high school.  On March 24, 2017, two assistant principals walked into the boys’ locker room and saw the student with a long silver device in his hand, which appeared to be a “vaping pen.”[1]  When one of the assistant principals yelled the student’s name, the student put the device in his pocket and attempted to walk away.  The assistant principal pursued the student who, when caught, claimed that he did not have anything in his possession.  The student subsequently admitted that he had dropped a device in the locker room after attempting to escape.  The assistant principal recovered the device, which was a silver vaping pen containing a substance.  The assistant principal provided the device to the head of security for the school.  The second assistant principal called the student’s parents as well as the Suffolk County Police Department.  Both the head of security and the police tested the substance; both tests confirmed that the substance contained THC oil.[2]  The student was subsequently arrested.

By letter dated March 24, 2017, the student was suspended for five days and charged with conduct that “endangers the safety, physical or mental health, morals or welfare of others” based on his “possession of a device which contained a controlled substance.”  A long-term suspension hearing was held on March 31, 2017, with the assistant principal for pupil personnel services serving as the hearing officer (“hearing officer”).  The hearing officer found the student guilty based on his admission to the charged conduct.  A manifestation team subsequently convened and determined that the student’s actions were not a manifestation of his disability.  The hearing officer recommended that the student be suspended for one calendar year.  By letter dated March 31, 2017, the superintendent adopted the hearing officer’s recommendations and suspended the student through March 30, 2018.  By letter dated May 24, 2017, respondent informed petitioner and the student’s mother that it had considered their appeal on May 9, 2017 and had upheld the superintendent’s decision.  This appeal ensued.

Petitioner contends that the penalty was excessive under the circumstances.  Petitioner acknowledges his son’s guilt but avers that the student has not committed any serious offenses in the past, and that he regularly attends counseling sessions with a substance abuse counselor.  Petitioner seeks an order allowing the student to return to school.

Respondent contends that the penalty was appropriate under the circumstances.  Respondent asserts that drug use is rampant in Suffolk County, that THC oil is often a “precursor to a larger drug problem,” and that the district “has taken a firm stance on all drug-related offenses.”  Respondent admits that its code of conduct does not impose mandatory minimum suspensions for drug use, but contends that the student’s offense was sufficiently severe to warrant a one-year suspension.

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). 

Here, the student admitted to possession of a device containing a controlled substance on school grounds.  When discovered with the device, the student attempted to conceal it from an assistant principal who attempted to speak with him.  The possession of a controlled substance on school property on school grounds is a serious offense and I have previously upheld a one-year suspension in a case involving a similar offense related to a controlled substance (see e.g. Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159 [one-year suspension for possession of cocaine upheld]).  Although the record reflects that the student has participated in weekly counseling sessions with a counselor following his suspension, I do not find that this mitigates the serious conduct described in this appeal or warrants the substitution of my judgment in this case as to penalty.

Further, contrary to petitioner’s arguments, the fact that respondent’s code of conduct does not require a specific or minimum penalty for such an offense, but rather recommends progressive discipline, does not preclude respondent from imposing a one-year penalty for the serious conduct involved in this case.  Indeed, I note that respondent’s code of conduct uses qualifying language in this regard, including that “[a]s a general rule, discipline will be progressive” and a student’s first violation “will usually merit a lighter penalty than subsequent violations” (emphasis supplied). 

Based on the record before me, I cannot conclude that a one-year suspension for the serious offense of possession of a device containing a controlled substance on school grounds is so excessive as to warrant the substitution of my judgment for that of respondent.




[1] According to respondent, a “vaping pen” is a device used to inhale vaporized substances such as oils, waxes, and dry herbs.


[2] According to respondent, THC (or tetrahydrocannabinol) “is the chemical compound in cannabis responsible for a euphoric high.”