Decision No. 12,940

(June 8, 1993)

Samuel J. Costa, P.C., attorney for petitioner, Samuel J. Costa, Esq., of counsel

Bond, Schoeneck & King, Esqs., attorneys for respondent, Thomas D. Keleher, Esq.,

of counsel

SOBOL, Commissioner.--Petitioner challenges the 10-day suspension imposed by respondent board of education upon his son. The appeal must be dismissed.

This appeal arises out of a disciplinary proceeding brought against petitioner's son pursuant to Education Law '3214, resulting from an incident that occurred on May 28, 1992 in the student's English class. On that day, the student's teacher, Doris Taylor, observed that instead of doing his class work, the student appeared to be writing a note. After several minutes Miss Taylor approached him, confiscated the note and told him to return to his assignment. After class the student asked Miss Taylor to return the note, but she refused.

Miss Taylor did not read the note immediately, but took it home with her and read it later that night. The note referred to Miss Taylor and contained profanities and sexually explicit language. The next morning Miss Taylor took the note to her building principal. She indicated that she felt threatened by it and that she considered the student's actions in writing the note both insubordinate and disorderly.

The principal suspended the student from school on May 29, 1992 and notified his parents that a superintendent's hearing was scheduled for June 3, 1992. The notice charged the student with insubordination, disorderly conduct and endangering the health, safety and welfare of a staff member in that on May 28, 1992, he wrote a threatening note regarding Miss Taylor.

The hearing was held on June 4, 1992. After testimony from Miss Taylor, an assistant principal, petitioner and his son, the hearing officer issued a decision which was adopted in its entirety by respondent's superintendent of schools. The superintendent found the student guilty of the charges; suspended him from school for 10 days until June 12, 1992; directed that he be referred to the principal for recommendations concerning appropriate counseling services; and indicated that, upon his return to school in the fall of 1992, the student would be placed on probation, with a condition that if he was involved in a similar situation again, he would face immediate disciplinary action.

Petitioner appealed the decision to respondent board of education. By letter dated July 2, 1992, respondent notified petitioner that it had affirmed the decision. This appeal ensued.

Petitioner alleges that the testimony and evidence elicited at the disciplinary hearing do not support a finding of guilt on the charges of insubordination, disorderly conduct or threatening the health, safety or welfare of a staff member. While petitioner concedes that the note could be described as juvenile, disturbing or obscene, he contends that there was no evidence that it presented a threat or otherwise violated Education Law '3214. Instead, petitioner argues that, because his son never intended to either deliver the note to Miss Taylor or use it to threaten her, he is being penalized for nothing more than expressing his thoughts on paper. Petitioner further alleges that his son has no history of violent or threatening behavior. In essence, he argues that there is no basis for finding his son guilty of the charges and, in the alternative, that the punishment imposed was excessive.

Respondent alleges that the record supports a determination that the student was guilty of the conduct charged as well as the measure of discipline imposed.

After reviewing the record before me, I find no basis to substitute my judgment for respondent's either on its finding of guilt or the measure of penalty imposed. The note in question is not only juvenile and obscene, it contains violent sexual and physical references and threats of physical harm. Petitioner argues that his son never intended to deliver the note to Miss Taylor and that, therefore, there was no basis for respondent's determination that he threatened his teacher's welfare. While petitioner's son may not have intended to hand the note to Miss Taylor, he nonetheless left it in plain view on his desk during her class at a time when he should have been doing his work and participating in class. It was not unreasonable or surprising that Miss Taylor eventually saw and took the note nor can her actions be deemed an invasion of this student's privacy. Unlike a situation where written expressions of one's thoughts and feelings are privately maintained - certainly Miss Taylor could not have removed the note from the student's pocket or bookbag without reasonable cause - in this instance, the student placed the note in plain view where it was reasonable to expect that it might be seen by the teacher. When she confiscated it, the contents of the note became a legitimate matter for review. Consequently, in view of the student's actions, petitioner's arguments that his son did not intend the note to be read are unpersuasive. Therefore, I find respondent's determination of guilt on the charges neither arbitrary nor capricious.

Similarly, I will not substitute my judgment regarding the penalty imposed. In view of the obscene nature of the note and its threatening messages, I do not find suspension from school for 10 days an excessive penalty (Appeal of Blish, 32 Ed Dept Rep 171; Appeal of Langenmayr, 30 id. 322).

Further, in view of the note's disturbing and violent message, the superintendent's directive referring this student to his building principal for recommendations of appropriate counseling services was clearly necessary and appropriate. The contents of the note raise serious questions regarding the state of mind of its author, and it is to respondent's credit that, instead of merely imposing discipline pursuant to Education Law '3214, it has taken steps to refer the student for counseling.

With respect to the student's probation, the record indicates that his placement on probation simply means that, in the event the student became involved in any similar behavior in the future, he would face immediate disciplinary action by the superintendent. All students are subject to disciplinary action pursuant to Education Law '3214 for engaging in inappropriate behavior, whether or not they are on probation. In this instance, because there is no evidence that the student would face automatic discipline without full due process as required pursuant to Education Law '3214, I do not find unreasonable respondent's determination to place this student on probation.

THE APPEAL IS DISMISSED.

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