Decision No. 12,760

(July 24, 1992)

Frank X. Kilgannon, Esq., attorney for petitioner

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's affirmance of its superintendent's decision to permanently expel petitioner's son from instruction. The appeal must be sustained.

Petitioner's son, now sixteen, was fifteen and a ninth grade student in respondent's high school during the 1990-91 school year. On the morning of June 11, 1991, a firecracker was ignited in school, injuring two students and a teacher. As a result of his part in the incident, petitioner's son was charged with insubordinate and disorderly conduct, as well as conduct endangering the health, safety and welfare of others. Following a hearing, the hearing officer found him guilty of possessing a firecracker in school on June 11, 1991; giving it to another student; and being present when it was detonated. The same hearing officer found another student guilty of lighting the firecracker. The hearing officer also found that petitioner's son did not realize that possession of a firecracker in school constituted a serious offense.

Based on his finding, the hearing officer recommended to the superintendent that petitioner's son be expelled from school. By letter dated September 23, 1991, the superintendent notified petitioner that he had adopted the hearing officer's findings and recommendation. On October 22, 1991, respondent heard petitioner's appeal and, by letter dated October 30, 1991, informed petitioner that the superintendent's determination to permanently expel the student had been affirmed. This appeal ensued.

Petitioner alleges that his son was classified as having a learning disability and was attending special education classes when suspended. Respondent denies that the student was ever classified as a child with a handicapping condition and describes his placement as a modified regular education program. Based on the record before me, I find no evidence that petitioner's son was classified or that his remedial program was special education.

Petitioner does not deny his son's involvement in the incident leading to his expulsion, nor does he challenge the hearing officer's findings. Petitioner's sole argument is that a penalty of permanent expulsion is disproportionate to his son's offense.

Since the right to education is constitutionally protected in the State of New York (NY Const, art 11 '1), any decision to permanently deprive a student of that right without some accommodation to enable him to continue his education elsewhere, requires strict scrutiny. A permanent suspension of a student is an extreme penalty which is generally educationally unsound except under the most extraordinary circumstances (Appeal of Felice, 29 Ed Dept Rep 332). For students of compulsory school age who are suspended from school, a board of education has an absolute legal obligation to arrange immediately for the student's attendance upon instruction elsewhere (Education Law '3214[3][c]). The provision of alternative instruction to students over the compulsory school age who are suspended from school, while not required, is of fundamental importance in assessing whether the discipline imposed is excessive.

In this case the board has made no provision whatsoever for this student's continuing instruction in the district or elsewhere. Furthermore, one year after the event, there is no basis in the record before me to determine whether the student continues to present a danger to the safety, health or welfare of others (Education Law '3214(3)(a)(1). Given the circumstances of this case, including my consideration of this student's past record, I find his permanent expulsion from instruction disproportionate to the offense, and suspension from all instruction beyond the date of this decision, excessive.

Where the penalty is excessive, I will substitute my judgment for that of the board of education in student discipline cases (Matter of Reynolds, 21 Ed Dept Rep 228; Matter of Bruce, 16 id. 143). Having found a permanent expulsion from instruction disproportionate to the offense, and this student's suspension from instruction to the date of this decision sufficient to impress upon him the seriousness of his conduct, any further suspension of this student is unwarranted.

Since petitioner alleges that his son is a child with a handicapping condition, he should be referred to the district's committee on special education immediately to arrange for a comprehensive evaluation to determine his need for special education before school begins in September.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the Board of Education of the Sewanhaka Central High School District admit Marcus D. to school commencing on the first day of classes for the 1992-93 school year, in September 1992.

IT IS FURTHER ORDERED that petitioner's son be referred to respondent's committee on special education for an evaluation upon issuance of this decision.

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