Decision No. 13,491

(October 23, 1995)

John W. Young, Esq., attorney for petitioner

MILLS, Commissioner.--Petitioner appeals the suspension of her daughter, Corinne, for the remainder of the 1994-95 school year and the entire 1995-96 school year. The appeal must be dismissed.

Corinne was a sixteen year old student at the Deposit Central School District ("respondent") when the alleged incident giving rise to her suspension occurred. On February 22, 1995, Corinne allegedly attacked another student without provocation. Corinne purportedly punched the student in the eye, necessitating surgery. She also allegedly banged the other student's head repeatedly against the floor, requiring a CAT scan to evaluate the student's injuries.

On February 22, 1995, Corinne was suspended from school for five days. On March 1, 1995, she was denied admission to school pending a superintendent's conference on March 7, 1995. On March 7, 1995, the hearing was held. On March 14, 1995, the hearing officer recommended Corinne's suspension for the remainder of the 1994-95 school year and the 1995-96 school year. The penalty was based upon the egregious nature of the February 22, 1995 incident and Corinne's anecdotal record, which included 13 other incidents of insubordination and violation of school rules. On March 20, 1995, the superintendent decided to allow petitioner to return to school on May 1, 1995 upon the signing of a contract of conduct. On April 24, 1995, the board of education heard petitioner's challenge to the superintendent's decision and affirmed. On April 28, 1995, petitioner and Corinne signed the contract, and on May 1, 1995, Corinne was readmitted to respondent's school. This appeal followed.

Petitioner claims that Corinne's actions were provoked, that the penalty is too harsh and that respondent improperly considered Corinne's anecdotal record. Respondent contends that the board of education's determination was proper, and that the penalty was proportionate to the offense.

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 Homick, 34 Ed Dept Rep 150; Appeal of Lewis, 33 id. 520; Appeal of Pierrot, 33 id. 67; Appeal of Kittell, 31 id. 419). In this case, there is competent and substantial evidence that Corinne acted as alleged. First, Corinne did not dispute that she was involved in a fight. Moreover, several witnesses testified as to the nature and severity of the fight. Specifically, three student witnesses testified that the attack was unprovoked and severe, describing how Corinne repeatedly banged the victim's head against the floor. Those student witnesses also testified that there was a history of animosity between Corinne and the victim. The victim's testimony corroborated the testimony of the other students. The hearing officer found this testimony credible, leading him to conclude that the attack was unprovoked and egregious. It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by the facts in the record (Appeal of Kittell, supra; Appeal of John T., 30 Ed Dept Rep 1; Appeal of Chapman, 28 id. 272). Here, the hearing officer's findings of credibility are supported by the record facts. Accordingly, there is no basis to overrule his finding of guilt.

I also find the use of Corinne's anecdotal record proper. An anecdotal record may be admitted into evidence to aid the hearing officer in determining an appropriate penalty after there has been a finding of guilt (Appeal of Homick, supra; Appeal of Lewis, supra; Appeal of Norwood, 31 Ed Dept Rep 464). The record reflects that the anecdotal record was only admitted once Corinne was found guilty. Furthermore, petitioner was notified that Corinne's anecdotal record would be considered and that she could review it prior to the hearing. Under these facts, admission of Corinne's anecdotal record in the penalty phase of the hearing was proper.

I also find that the penalty imposed was proper. The anecdotal record reveals that Corinne was disciplined for acts of insubordination and violation of school rules 13 times during the 1993-94 and 1994-95 school years. The prior acts were insubordination, rudeness, talking during class and failure to obey school rules. Based on the foregoing, I find that the reduced penalty imposed upon Corinne by respondent is appropriate (Appeal of Homick, supra; Appeal of Lewis, supra; Appeal of Kittell, supra; Appeal of Vachon, 28 Ed Dept Rep 276).

Petitioner also contends that Corinne's rights were somehow violated by respondent's requirement that she sign a statement agreeing to abide by the rules and regulations of the school. Corinne's execution of this document merely demonstrates her understanding of school rules (Appeal of Homick, supra). It does not impose any special rules or regulations upon Corinne that are not imposed upon her fellow students.

Finally, Corinne's suspension ended when she reentered school on May 1, 1995. Given the serious nature of the offense, and Corinne's anecdotal record, I find this reduced penalty reasonable. I have reviewed petitioner's remaining claims and find them without merit.

THE APPEAL IS DISMISSED.

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