Decision No. 13,385

(March 27, 1995)

Andrew S. Nachamie, Esq., attorney for petitioner

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals the suspension of her son, Leon Guy, from the Sewanhaka Central High School District. The appeal must be dismissed.

On March 18, 1993, Leon, a fourteen year old student, was admitted to Elmont Memorial High School in respondent's school district. On March 24, 1993, Leon brought a loaded .25 caliber pistol to school. Consequently, Leon was suspended from school. On April 20, 1993, a hearing was held in accordance with Education Law '3214. In a decision dated April 29, 1993, the superintendent expelled Leon. Subsequently, respondent provided Leon with home instruction. On December 10, 1993, the Family Court of Nassau County adjudicated Leon to be a juvenile delinquent and placed him on probation for 24 months.

At petitioner's request, respondent's committee on special education ("CSE") evaluated Leon. On February 2, 1994, the CSE determined that Leon did not have a disability. In response to petitioner's request to allow Leon to return to school, respondent's consulting psychiatrist, Dr. Oris, met with Leon on April 11, 1994. Dr. Oris determined that Leon had several manifestations of a conduct disorder. Dr. Oris further noted that Leon exhibited antisocial tendencies, that his possession of a gun was clearly part of his disorder and that Leon had potential for aggressive behavior. Dr. Oris recommended family therapy prior to his return to school.

Petitioner subsequently arranged for a separate psychiatric evaluation of Leon by her own psychiatrist, Dr. Clerisme. Dr. Clerisme found that Leon "is not a danger to himself or others" and recommended his "immediate reinstatement to regular high school" and "biweekly family therapy for about three months." Dr. Oris disagreed with Dr. Clerisme's findings and recommendations in a memo dated July 1, 1994. Based on Dr. Oris' evaluation, respondent agreed to return Leon to his regular instruction on January 26, 1995, contingent upon a re-examination of Leon by Dr. Oris. This appeal followed.

On January 20, 1995, respondent scheduled a re-examination of Leon, which he did not attend due to illness. Petitioner then informed respondent she would not allow Leon to submit to a psychiatric evaluation unless ordered to do so by the Commissioner of Education.

Petitioner seeks Leon's reinstatement, asserting that the penalty for his misconduct is unduly harsh and home instruction is inadequate. Respondent asserts that the penalty is appropriate, that it need not accept petitioner's assertions of Leon's fitness to return to school and that it can continue Leon's expulsion until convinced Leon will not be a danger in the school environment.

Before reaching the merits, I will address several procedural matters. Pursuant to 8 NYCRR 275.16, an appeal to the Commissioner of Education must be brought within 30 days of the act or decision about which petitioner complains. The superintendent issued his decision on April 29, 1993. This appeal was commenced on August 22, 1994, more than one year after the decision was rendered. Although petitioner states that she is contesting respondent's refusal to allow Leon to return to school, it is apparent from the petition that she is actually challenging his original expulsion from school. Therefore, because petitioner did not initiate her appeal until more than one year from the expulsion, it must be dismissed as untimely (Appeal of Sole, 34 Ed Dept Rep 270).

Moreover, it is well settled that review by the board of education of a disciplinary decision of a superintendent is a prerequisite to bringing an appeal to the Commissioner of Education (Appeal of Felice, 29 Ed Dept Rep 332; Appeal of Dillon, 25 id. 23; Matter of Ahern, 22 id. 123). Although petitioner names the board of education as a respondent in this appeal, the record does not indicate that petitioner ever sought board review of the superintendent's action. That omission requires dismissal of this appeal as premature.

Even if the appeal were not procedurally flawed, I would nevertheless dismiss it on the merits. Petitioner contends that the home instruction provided to Leon since he has been expelled is inadequate. Respondent denies that contention. Students of compulsory school age who are suspended or expelled from school, such as Leon, must be provided alternative instruction (Education Law '3214(3)(c)). The record in this case shows that respondent provided Leon with a one-to-one tutor who is scheduled to spend two hours per school day with Leon. Unfortunately, the record also reveals that Leon is often uncooperative. Based on such record, I cannot conclude that respondent has not provided proper alternative instruction to Leon (Appeal of Dloniak, 33 Ed Dept Rep 717).

Petitioner also contends that the penalty imposed is excessive and should be reduced. Respondent denies that assertion. Permanently expelling a student is an extreme penalty which is educationally unsound except under the most extraordinary circumstances (Appeal of Felice, supra). Such a penalty is, however, within the discretion of school officials, when warranted (Appeal of Sole, supra). The Educate America Act of 1994, 20 USC '3351(a)(1) ("Gun-Free Schools Act"), requires a school district to have a policy mandating an automatic suspension of at least one year for a student who brings a gun to school. Moreover, respondent asserts its policy regarding weapons in schools is intended to send a message to students of intolerance for such behavior. Clearly, bringing guns to school cannot be tolerated, and bringing a loaded gun to school is a very serious matter. The fact that no injuries occurred in this case, whether intended or accidental, is of little merit. While I am always reluctant to uphold a permanent suspension of a student because of the deleterious effect it has upon that student's education, I am also mindful of the need to safeguard the well-being of other students. Thus, based upon the record facts, I cannot agree with petitioner that the expulsion was unduly harsh. In fact, I find respondent's offer to allow Leon to reenter school after a positive re-evaluation by Dr. Oris to be fair and reasonable. Moreover, I will not require respondent to readmit Leon without first being confident that he does not pose a danger to the school population at large.

Furthermore, I will not require respondent to accept the assertions of petitioner's psychiatrist or the psychological evaluation done for the Nassau County Probation Department. Because the danger that Leon posed to the entire school community by bringing a loaded gun to school is so severe, respondent is not unreasonable in relying upon its own expert in this matter. Thus, based upon the record before me, and the fact that a board of education may be held liable for its failure to take appropriate steps to prevent injury from the reasonably foreseeable intentional acts of a student (Mirand v. City of New York, 84 NY2d 44; Appeal of Sole, supra), I will not substitute my judgment for that of respondent in this case.

THE APPEAL IS DISMISSED.

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