Decision No. 13,411

(May 11, 1995)

Vergilis, Stenger, Lucia & Roberts, Esqs., attorneys for

petitioner, Thomas R. Davis, Esq., of counsel

Raymond G. Kruse, Esq., attorney for respondents, Robert A. Kramer, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals his permanent suspension by the Board of Education of the Wappingers Central School District ("respondent"). The appeal must be sustained in part.

In March 1994, petitioner was a 15 year-old student at John Jay High School in the Wappingers Central School District. On March 22, 1994, another John Jay High School student ("R.E.") was seen at school with a gun and was arrested by the police. R.E. admitted to the arresting officer that he had obtained the gun the night before from petitioner at petitioner's home. Since petitioner's home was located outside of the police officer's jurisdiction, the officer called the State Police. A State Police investigator eventually arrested petitioner, who admitted that he gave the gun and ammunition to R.E. the night before at his home. Petitioner was then suspended from school for five days. The superintendent scheduled a hearing pursuant to Education Law '3214 for March 28, 1994.

At the hearing, petitioner was charged with engaging in conduct that endangered the health, safety and welfare of himself and other students by possessing and transferring a dangerous weapon, specifically a gun and live ammunition, to another student, which the other student brought to school. Two police officers and petitioner were the only witnesses at the hearing. On April 6, the hearing officer recommended petitioner's permanent suspension because his conduct endangered the health, safety and welfare of the students of John Jay High School. On April 12, 1994, the superintendent adopted the hearing officer's recommendation and permanently suspended petitioner. Petitioner appealed the superintendent's decision to respondent board, which on May 19, 1994 confirmed and adopted the superintendent's decision. This appeal ensued.

Petitioner claims that the hearing officer's decision, as adopted by the superintendent and respondent board, is arbitrary and capricious and lacks a rational basis. At the hearing, the school district presented only the testimony of the officer who arrested R.E. and the State Police officer who arrested and interviewed petitioner. Petitioner contends that the evidence at the hearing failed to prove that he intended to endanger the health, safety and welfare of other students or knew that they would be endangered. Petitioner asserts that he had no knowledge that R.E. intended to bring the weapon to school. Furthermore, he contends that the officer who arrested R.E. had no knowledge of whether R.E. had told petitioner why he wanted the gun or if petitioner knew R.E. was going to bring the weapon to school. Petitioner also asserts that respondent failed to support its case by failing to offer the testimony of R.E. In addition, petitioner claims that respondent exceeded its jurisdiction in punishing him for possession of a weapon off school grounds and that respondent's actions are tantamount to selective prosecution. Finally, petitioner asserts that the penalty of permanent suspension is disproportionate to the offense. Petitioner states that another student, S.T., who sold the gun to petitioner off school grounds, was given only a one-year suspension.

Respondent asserts that its decision to permanently suspend petitioner was proper and proportionate to the severity of the offense because petitioner engaged in conduct which endangered the health, safety and welfare of himself and other students. Respondent also asserts that it has the authority to suspend a student pursuant to Education Law '3214 for conduct which occurs off school premises when that conduct endangers the health, safety and welfare of its students. Respondent contends that whether petitioner knew that R.E. would bring the gun to school is not a necessary element of the violation with which petitioner was charged. Nonetheless, respondent states that such knowledge was indeed proven at the hearing. Respondent also states that petitioner fails to state a claim upon which relief can be granted.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Stewart, 34 Ed Dept Rep 193; Appeal of Kittell, 31 id. 419). The record indicates that the hearing officer's decision was based on the testimony of the two officers present at the hearing. The State Police officer who arrested petitioner testified that petitioner admitted to him orally and in writing that he had given a weapon and clip of bullets to R.E. That testimony is competent and substantial evidence that petitioner gave the gun to R.E.

Petitioner argues, however, that there is nothing in the record proving that he knew that R.E. was going to bring the gun to school. The officer who arrested R.E. testified that R.E. told him he needed the gun for protection from other students with whom he had had a problem the previous weekend. However, the officer also testified that he did not know whether R.E. had told petitioner why he wanted the gun (Transcript at 15-16). In addition, the State Police officer testified that he had no conversation with petitioner regarding whether he knew why R.E. requested the gun from him (Transcript at 23). Nor did R.E. or the student who accompanied R.E. to petitioner's home tell the State Police officer that R.E. told petitioner why R.E. wanted the gun (Transcript at 24). Although R.E. did not testify, petitioner testified that R.E. merely asked him to borrow the gun; R.E. did not tell him why he wanted the weapon (Transcript at 27). Accordingly, petitioner argues that he had no intent to endanger the health, safety and welfare of other students nor did he know that they would be endangered.

Respondent argues that the fact that petitioner admitted knowing R.E. since the sixth grade and speaks to him at least three periods a day (Transcript at 29) and that petitioner fired the gun to show R.E. that the gun was operable, in conjunction with the fact that R.E. had had recent trouble at school, were more than sufficient for the hearing officer to infer that petitioner knew that the gun would be brought to school. Moreover, respondent argues that knowledge or intent is not necessary since petitioner's behavior, namely, transferring a gun to a fellow student, is punishable in and of itself under '3214.

Petitioner's admitted possession and transfer of the gun and ammunition, in and of themselves, constitute conduct which warrant his suspension under '3214. Petitioner did not need to have specific knowledge that R.E. was going to bring the gun to school. Moreover, as stated in Matter of Pollnow, 22 Ed Dept Rep 547, citing Matter of Rodriguez, 8 Ed Dept Rep 214 at pages 216-217:

Possession of weapons in school cannot be tolerated under any circumstances nor can the possession of weapons by school-age children. The hearing officer concluded that petitioner's behavior

Based on the record before me, respondent's determination that petitioner's conduct endangered the health, safety and welfare of himself and other students was reasonable, and respondent did not abuse its discretion in suspending petitioner under '3214.

Turning to the appropriateness of the penalty, a permanent suspension of a student is an extreme penalty which is generally educationally unsound except under the most extraordinary circumstances (Appeal of Nathaniel D., 32 Ed Dept Rep 67; Appeal of Felice, 29 id. 332). The record indicates that petitioner's anecdotal record contains only minor infractions. Specifically, petitioner has cut a few classes, was disruptive in one class and was involved in a gossip incident which caused his father to remove him for one day (Transcript at 35). Despite a strong intolerance against weapon possession of any sort, given the circumstances of this case and considering petitioner's anecdotal record, I find his permanent suspension from instruction disproportionate to the offense.

Where the penalty is excessive in a student discipline case, I will substitute my judgment for that of the board of education (Appeal of Stewart, supra; Appeal of Nathaniel D., supra; Matter of Reynolds, 21 id. 228). The fact that the alternative instruction petitioner presently receives will not be required once he exceeds the age of compulsory school attendance must also be considered in assessing whether the discipline imposed is excessive (Appeal of Judy F., 34 Ed Dept Rep 81; Appeal of Nathaniel D., supra). Having determined that a permanent suspension from instruction is disproportionate to the offense, I find his suspension from instruction from March 1994 through the end of the 1994 school year and for an additional year to the end of the 1994-95 school year sufficient to impress upon him the seriousness of his conduct. This suspension is proportionate to the suspension of S.T., who sold the gun to petitioner.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the Board of Education of the Wappingers Central School District admit Gregory Tietje to school commencing on the first day of classes for the 1995-96 school year in September 1995.

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