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Decision No. 18,378

Appeal of P.M., on behalf of her child, from action of the Board of Education of the Marlboro Central School District regarding student discipline.

Appeal of K.K., on behalf of her child, from action of the Board of Education of the Marlboro Central School District regarding student discipline.

Decision No. 18,378

(February 13, 2024)

Thomas, Drohan, Waxman, Petigrow, & Mayle, LLP, attorneys for respondent, Gregory R. Picciano and Neelanjan Choudhury, Esqs., of counsel

ROSA., Commissioner.--In two separate appeals, petitioners (individually, “P.M.” and “K.K.”) challenge separate determinations of the Board of Education of the Marlboro Central School District (“respondent”) to suspend their children.  Because the appeals arise out of similar facts and circumstances and present similar issues of law, they are consolidated for decision.  The appeal of P.M. must be sustained and the appeal of K.K. must be dismissed.

At the time of the events that gave rise to this appeal, the students attended eleventh grade at respondent’s high school.  In separate letters dated June 8, 2023, respondent notified each petitioner that their child was suspended from school for five days.  These letters described the incident as follows:  “[a] teacher asked [the students] to stop pushing each other in the hallway.  [Each student] then pushed the teacher.”  Both students were charged with “minor altercation without a weapon.”

The hearings, presided over by respondent’s superintendent, convened on June 15, 2023.  Each student pled guilty to the charge.  In letters dated June 16, 2023, the superintendent informed P.M. that her child (“student 1”) was suspended from the start of the 2023-2024 school year through November 10, 2023; he informed K.K. that her child (“student 2”) was suspended through January 22, 2024.

Petitioners appealed these determinations to respondent, which upheld them.  These appeals ensued.  Requests for interim relief were granted on August 15, 2023 (petitioner P.M.) and August 29, 2023 (petitioner K.K.).

Petitioners assert that the students’ punishment is excessive and disproportionate to the charged conduct. 

Respondent argues that petitioner K.K.’s appeal must be dismissed as untimely.  On the merits, respondent argues that the length of the students’ suspensions were proportionate to their conduct.

Petitioner K.K.’s appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Respondent’s determination was mailed to petitioners on July 7, 2023.[1]  Affording five days for mailing and excluding Sundays and holidays, petitioners each had until August 14, 2023 to appeal respondent’s determination.  Petitioner K.K. did not commence her appeal until August 18, 2023 and presents no explanation for the delay (see 8 NYCRR 275.16).  Accordingly, petitioner K.K.’s appeal must be dismissed as untimely (Appeal of P.W., 62 Ed Dept Rep, Decision No. 18,291).[2]

Turning to the merits of petitioner P.M.’s appeal, a student suspension must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so shocking to the conscience as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055; Appeal of C.N. and C.N., 60 id., Decision No. 17,954).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884). 

Pushing anyone is unacceptable.  But, as the superintendent explained at student 1’s hearing, “[d]etails matter, because a push can be a very big spectrum of things.”  Here, those details reveal that the “push” was innocuous.  Respondent described the interaction as follows:

 … the [students] were jokingly pushing one another in the hallway outside their classroom.  A ... teacher intervened and asked both students to stop pushing one another, when the teacher was pushed by the [students], causing her to take a few steps backwards.

The students further testified that they were friends, enjoyed a good relationship with the teacher, that no one was harmed because of their actions, and that they had since apologized to the teacher.  They also acknowledged that it is never acceptable to touch a teacher, even in a joking manner.[3]

The district presented no witnesses or evidence to rebut the students’ testimony.  Crucially, the teacher did not testify or seek to submit an affidavit describing her recollection of the incident.  Thus, the record supports a finding that student 1 engaged in innocent, if ill-advised jocularity that did not warrant a long-term suspension (Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055).  Accordingly, I find the long-term suspension imposed by respondent shocking to the conscience.

Respondent nevertheless asserts that a lengthy suspension is justified because “the Commissioner of Education has routinely held that physical violence by a student is not acceptable ....”  This argument presupposes that the students’ conduct can be characterized as “violent,” a finding with no support in the record.[4]  In any event, the three decisions of the Commissioner cited by respondent are distinguishable as they involved more severe conduct and injuries to school staff (Appeal of T.A., 58 Ed Dept Rep, Decision No. 17,566 [student pushed a staff member out of his way, causing the staff member to fall to the ground and sustain physical injury]; Appeal of A.W., 46 id. 367, Decision No. 15,535 [student pushed a teacher into a desk, causing her to fall on her back, after she attempted to break up a fight between the student and another]; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036) [student pushed a school aide out of the way to exit the cafeteria, leaving a bruise]).

Given the excessiveness of the suspension and the fact that it has now expired, I find that it must be expunged from student 1’s record (Appeal of B.A., 62 Ed Dept Rep, Decision No. 18,209; Appeal of K.P., 61 id., Decision No. 18,055).[5]



IT IS ORDERED that respondent annul and expunge from Student 1’s record all references to the long-term suspension described herein.



[1] The record indicates that the superintendent also notified petitioner K.K. of respondent’s determination in a July 7, 2023 email.  Given the fact that the appeal is untimely as measured from the written determination, I need not determine whether the email provided sufficient notice.


[2] Respondent is precluded, at this juncture, from imposing an additional period of suspension (Appeal of A.G., 63 Ed Dept Rep, Decision No. 18,346; Appeal of R.C., 62 id., Decision No. 18,234; see Appeal of N.V.D., 60 Ed Dept Rep, Decision No. 17,985).


[3] While untimely, I take notice of the hearing record in Appeal of K.K. given student 2’s participation in the events described herein.


[4] Violence means using “physical force so as to injure, abuse, damage, or destroy.” Dictionary, violence, []).


[5] While petitioner K.K.’s appeal is untimely, I encourage respondent to consider the findings and reasoning of this decision in determining whether to expunge student 2’s suspension.