Appeal of IRENE KIER on behalf of her son, ERIC, from action of the Board of Education of the Fairport Central School District regarding student discipline.

Decision No. 14,217

(October 1, 1999)

Sharon M. Kehoe, Esq., attorney for petitioner

Harris, Beach & Wilcox, LLP, attorneys for respondent, Edward A. Trevvett and David W. Oakes, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the suspension of her son by the Board of Education of the Fairport Central School District ("respondent"). The appeal must be sustained in part.

On November 21, 1998, petitioner's son, Eric, and several other students vandalized an automobile parked in the parking lot of the Fairport Central High School. Eric was suspended from school on November 25, 1998, and a disciplinary hearing pursuant to Education Law "3214 was scheduled for December 1. As a result of negotiations between petitioner's original attorney and respondent's attorney, the disciplinary hearing did not actually commence until February 8, 1999; Eric was out of school between November and February. Pursuant to a directive of the hearing officer, Eric was allowed to return to school pending the continuation of the hearing. On February 23, 1999, Eric resolved felony criminal charges pending against him as a result of the incident by pleading guilty to disorderly conduct.

On February 26, 1999, the hearing resumed. At that time, with the criminal charges disposed of, Eric offered to plead no contest to the disciplinary charges against him, if the school district would agree to allow him to return to school. Respondent's attorney refused to accept that plea and the hearing continued. On March 2, 1999, the superintendent upheld the hearing officer's recommendation, found Eric guilty of the vandalism charges against him, and suspended him for the remainder of the 1998-1999 school year. Eric was excluded from the district's high school as of March 5.

Petitioner appealed the disciplinary determination to respondent, and by a letter dated March 19, 1999, respondent's president advised that respondent had upheld the superintendent's determination.

On April 1, 1999, this appeal was commenced, and petitioner sought an order staying imposition of the penalty. On May 4, I granted a stay, and ordered respondent to admit Eric immediately to classes, including extracurricular activities and the opportunity to participate in graduation.

On or about May 10, 1999, respondent commenced an Article 78 proceeding in Supreme Court, Albany County, to annul my stay order. On June 1, 1999, Supreme Court dismissed the pending Article 78 proceeding, on the ground that a court should not interfere with an interim order made by an administrative agency during the pendency of an administrative proceeding (Matter of Board of Education of the Fairport Central School District v. Richard P. Mills, et al., Supreme Court, Albany County, Kane, J., June 1, 1999, n.o.r.).

Petitioner makes a number of claims with respect to the notice of charges, the manner in which the hearing was conducted, and other related matters. She asks that I annul the finding of guilt and expunge all reference to this suspension in Eric's records. She further argues that the penalty is excessive, and should be set aside.

Respondent generally denies petitioner's claims, argues that the proof of guilt is very substantial, and argues that the seriousness of the damage done to the parked car justifies the penalty imposed.

I find that the proof of guilt is more than adequate to sustain the hearing officer's finding, and see no procedural irregularity that would justify setting aside that finding. However, with respect to the penalty, I must agree with petitioner.

The record indicates that several other students who were involved in the same incident and were charged with the same misconduct were given suspensions ranging from as little as 5 days up to a maximum of 38 days. These penalties are approximately one-third or less the period of suspension imposed upon Eric.

Respondent argues that a longer penalty is justified for Eric because he refused to cooperate with the school's investigation, and did not admit his guilt. I do not find this argument persuasive. Eric was charged with a felony which was not disposed of until February 23, 1999. Upon that disposition, he offered to plead no contest if he

 

could return to school immediately. The record indicates that the charges brought against all the students were exactly the same, and it is clear that Eric received a much longer penalty because he forced the district to proceed to a hearing rather than making an admission of guilt while a felony charge was pending against him. The record further indicates that Eric's anecdotal record was unremarkable and, apparently, was not even introduced in the penalty phase of the hearing.

I do not condone Eric's actions, which are serious and grossly inappropriate. However, I cannot agree that the punishment he received is rationally based and proportionate to the seriousness of the offense, when others received substantially lesser punishments for precisely the same misconduct.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the suspension of Eric Kier terminate as of May 4, 1999.

IT IS FURTHER ORDERED that the records of the Fairport Central School District be amended to indicate that the penalty imposed on Eric Kier was a suspension which terminated on May 4, 1999.

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