Decision No. 13,654

(August 14, 1996)

Hon. Edward H. Peace, Corporation Counsel, attorney for respondent,

Rosemary Gavigan Bis, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals from a determination of the Board of Education of the Buffalo City School District ("respondent") to suspend her daughter from school from April 6, 1995 through the remainder of the school year. The appeal must be dismissed.

Petitioner's daughter was a senior in respondent's district during the 1994-95 school year. On April 5, 1995 she was in the high school library with her English class working on a poetry project. At some point during the class period petitioner's daughter became involved in an altercation with the librarian and was subsequently charged with threatening the librarian and using vulgar language. As a result, petitioner's daughter was suspended from school on April 6, 1996, and a hearing was scheduled pursuant to Education Law '3214. Due to the intervening spring vacation, the hearing was held on April 24, 1995. The hearing officer heard testimony from the librarian, the high school vice-principal, petitioner's daughter and another teacher and student present during the incident. After hearing the testimony, the hearing officer issued a decision on May 8, 1995, finding petitioner's daughter guilty of the conduct charged and, after reviewing the student's anecdotal record which included two prior similar incidents, suspending her for the remainder of the school year. Petitioner's daughter was permitted to return to the high school to take final examinations but, pursuant to district policy, was not permitted on school grounds for any other purpose, including attendance at her senior prom on May 12, 1995.

As part of her petition in this appeal, petitioner sought interim relief permitting her daughter to attend her senior prom pending the outcome of the appeal. On May 12, 1995, after reviewing the matter, former Commissioner Sobol denied petitioner's request. Consequently, that part of petitioner's appeal that seeks relief in the form of an order directing that the student be permitted to attend the prom is moot (Appeal of Kitt, 35 Ed Dept Rep 490; Appeal of Capeless, 35 id. 454).

The appeal must also be dismissed on the merits. Petitioner challenges the finding that her daughter threatened the librarian and used obscene language, contending that another student confessed to the conduct attributed to petitioner's daughter. Petitioner also asserts respondent failed to provide her daughter with home instruction during the suspension.

Respondent contends that the record supports the hearing officer's finding that the student engaged in the conduct charged. Respondent also contends that home instruction was properly provided, except on certain days when it was refused by petitioner.

Upon review of the record, I find no basis to overturn the determination of guilt on the conduct charged. Education Law '3214(3)(a)(1) authorizes a school district to suspend "a pupil who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others." However, 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 Nasca, 35 Ed Dept Rep 302; Appeal of Herzog, 35 id. 173). At the hearing, the hearing officer heard testimony from the librarian and a teacher witness establishing that, on April 5, 1995, petitioner's daughter verbally threatened the librarian and used vulgar language toward her. Although the students testified to the contrary, the hearing officer did not credit their testimony. I note that a third student, claimed by petitioner's daughter to have confessed to making the charged remarks, did not testify. Although petitioner's daughter indicated that the third student reported his confession to the vice-principal, the vice-principal testified that the student never came to him regarding the incident. The Commissioner of Education will not substitute his judgment on witness credibility unless the findings are not supported by the facts in the record (Appeal of Bowen, 35 Ed Dept Rep 136; Appeal of Kittall, 31 id. 419). Here, the hearing officer's findings of credibility are supported by the record facts. Accordingly, there is no basis to overrule his findings.

Petitioner's claims regarding home instruction are also unsupported by the record. In respondent's school district students under age 17 must attend school upon instruction (Education Law '3205[3]). Consequently, respondent was required to provide alternative instruction during the period of suspension. The record indicates that respondent provided such instruction. On certain dates during the suspension period petitioner refused home instruction based on a conflict with the student's work schedule. The record indicated that respondent accommodated the student's schedule by providing a tutor in the evening - contrary to usual district practice. Consequently, I find that respondent did not fail to provide petitioner's daughter with instructional services during her suspension but, instead, made extraordinary efforts to provide such services.

Finally, petitioner alleges that her daughter was improperly suspended for more than five days prior to the issuance of the hearing officer's decision. Education Law '3214(3)(c) provides in pertinent part:

In this instance, a hearing was held on the fifth day of suspension. However, no decision was rendered for two weeks thereafter, during which time the student remained on suspension. Consequently, the student was suspended for ten additional days with no determination that she had engaged in the conduct charged. While the delay in rendering a decision is not a basis to overturn the suspension (see, Appeal of Knispel, 35 Ed Dept Rep 145), I remind respondent of its obligation to comply fully with the provisions of Education Law '3214 and to ensure that hearing decisions are rendered thereunder in a timely manner.

THE APPEAL IS DISMISSED.

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