Appeal of CHERYL COLEMAN, on behalf of DARNELL COLEMAN, from action of the Board of Education of the Brentwood Union Free School District regarding a student suspension.

 

Decision No. 14,628

 

(August 23, 2001)

 

Deborah Berger, Esq., attorney for petitioner

 

Bernard T. Callan, Esq., attorney for respondent

 

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Brentwood Union Free School District ("respondent") permanently suspending her son, Darnell, from school. The appeal must be sustained in part.

At the beginning of the 2000-01 school year, Darnell was enrolled in the eleventh grade at the Brentwood Senior High School. By letter dated September 26, 2000, petitioner was notified that Darnell was being suspended from school for a period of five days for insubordination and endangerment based on allegations that he had placed his hands around a female student's neck to collect money she allegedly owed him and then threatened a teacher when told to report to the office. By letter dated September 28, 2000, petitioner was notified that a superintendent's hearing would be conducted. That letter also charged Darnell with insubordination for violating probation imposed pursuant to a March 24, 2000 superintendent"s hearing.

A superintendent"s hearing was held on October 10, 2000. Darnell pled guilty to the insubordination charge pertaining to the probation violation, but not guilty to the remaining charges. The district"s sole witness, a high school teacher, testified that between the fourth and fifth period he observed Darnell threaten a female student while holding her jacket against her neck. He testified that Darnell also refused the teacher"s directive to report to the office and threatened to break the teacher"s neck after he was directed to leave the building through the front door.

At the hearing, Darnell admitted grabbing the student and "put[ting] her up against the wall," but denied threatening the teacher. By memorandum dated October 10, 2000, the hearing officer informed respondent"s superintendent of schools that Darnell had pled guilty to the charge of violating probation and that he had found Darnell guilty of the remaining charges and recommended that Darnell be permanently suspended from school.

By letter dated October 10, 2000, respondent"s superintendent of schools informed petitioner that he had approved the hearing officer"s recommendation. By letter dated October 26, 2000, petitioner, through her attorney, appealed the superintendent"s determination to respondent and also attempted to appeal Darnell"s March 24, 2000 superintendent"s hearing. It is unclear from the record whether petitioner had previously appealed the March 24, 2000 hearing decision. By letter dated November 20, 2000, petitioner's counsel was informed that respondent had denied petitioner"s appeal. This appeal ensued. Petitioner"s request for interim relief was denied on December 8, 2000.

Petitioner contends that the disciplinary record considered by the hearing officer at the October 10, 2000 hearing is inaccurate. Specifically, she alleges that she never received notice of any disciplinary action taken against her son on January 7, 1999, May 4, 1999 or May 11, 2000. Petitioner also disputes the hearing officer"s assertion that Darnell"s disciplinary record reveals a history of "serious disciplinary problems" and contends that the penalty imposed was excessive. Petitioner also claims that she was not properly advised of her right to call witnesses at the hearing and was deprived of her right to cross-examine witnesses because the hearing officer permitted the introduction of a written statement from the student involved in the incident. Finally, petitioner attempts to raise a number of procedural challenges related to the March 24, 2000 hearing. For relief, petitioner requests, among other things, an order directing respondent to immediately admit her son to school; "[o]verturning the suspension of March 24, 2000"; and expunging any reference to the short-term suspensions of January 7, 1999, May 4, 1999 and May 11, 2000.

Respondent contends that the October 10, 2000 hearing was properly conducted and asserts that permanent suspension was appropriate. Respondent also contends that the appeal is untimely to the extent that it challenges the short-term suspensions imposed on January 7, 1999, May 4, 1999 and May 11, 2000.

Preliminarily, I note that the appeal is moot to the extent that petitioner challenges the penalty imposed pursuant to the March 24, 2000 superintendent"s hearing. Petitioner"s son pled guilty at the October 10, 2000 hearing to violating his probation from the March 24, 2000 hearing. Accordingly, the probation penalty was subsumed by the permanent suspension which petitioner challenges herein. To the extent that petitioner challenges that portion of the penalty from the March 24, 2000 hearing that barred petitioner from all extra-curricular activities for the remainder of the school year, the appeal is also moot because the 1999-2000 school year has ended.

However, I will address the merits of petitioner"s claim pertaining to the accuracy of her son"s disciplinary record, to the extent she challenges the January 7, 1999 and May 11, 2000 entries. Preliminarily, I find no merit to respondent"s assertion that this claim is untimely. Although an appeal to the Commissioner must be commenced within 30 days from the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Lilly, 39 Ed Dept Rep 601, Decision No. 14,324), a parent cannot be expected to appeal a disciplinary action of which she was never notified. Although it appears that respondent notified petitioner by letter dated May 4, 1999 of the May 4, 1999 suspension, respondent essentially concedes that it never notified petitioner in writing of the January 7, 1999 and May 11, 2000 suspensions, nor is there any proof that respondent orally notified petitioner of such suspensions. It is not entirely clear from the record when petitioner first learned that these two suspensions appeared on her son"s disciplinary record. Although petitioner apparently had the opportunity to review her son"s disciplinary record at the March 24, 2000 superintendent"s hearing, it is not clear from the record whether the entry for January 7, 1999, challenged by petitioner in the instant appeal, was part of the disciplinary record made available to her at that hearing. Moreover, the May 11, 2000 suspension would not have appeared on her son"s record at that time because it occurred subsequent to the March 24, 2000 hearing. Because there is no proof that petitioner knew of the January 7, 1999 and May 11, 2000 short-term suspensions before her son"s October 10, 2000 disciplinary hearing, I decline to dismiss her challenge to these two entries on timeliness grounds.

Prior to November 1, 2000, Education Law "3214(3)(b) provided, in the case of a suspension of five days or less, that:

...the pupil and the person in parental relation to the pupil shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of the complaining witnesses.

Additionally, 8 NYCRR "100.2(l)(4) required written notice of any suspension to the parents or person in parental relation to the student including an explanation of the parents' right to request an informal conference with the principal. Respondent essentially concedes it never notified petitioner of either the January 7, 1999 or May 11, 2000 suspensions. This failure requires that both suspensions be expunged from Darnell"s record (see, Appeal of Knapp, 39 Ed Dept Rep 453, Decision No. 14,282; Appeal of a Student Suspected of Having a Disability, 38 id. 537, Decision No. 14,088).

Turning to petitioner"s challenge to the October 10, 2000 hearing, I find no merit to petitioner"s claim that respondent did not inform her of her son"s right to present witnesses in his defense. The record reflects that the hearing officer apprised petitioner of her right to present witnesses and that petitioner"s son responded "I don"t need any." In addition, the September 28, 2000 letter from respondent"s superintendent of schools notifying petitioner of the superintendent"s hearing advised that she was free to make arrangements to present witnesses at the hearing. Moreover, Darnell essentially admitted his guilt with respect to the allegations involving the student. Accordingly, petitioner has failed to demonstrate how her son was prejudiced by the fact that she allegedly was not given the opportunity to call the student as a witness.

Before a student is suspended for more than five days, he or she has a right to a fair hearing that includes the right to cross-examine witnesses against him (Education Law "3214(3)(c); Appeal of Parker, 34 Ed Dept Rep 379, Decision No. 13,351). The hearing officer erred by permitting the district to introduce a written statement of the student involved in the incident in lieu of her live testimony. By doing so, the hearing officer deprived petitioner of the opportunity to cross-examine the student in question (see, Appeal of Parker, supra). However, it appears that the hearing officer based his determination of guilt solely on the live testimony presented during the hearing. Because there is no evidence that the hearing officer considered this improper evidence, and the testimony of the teacher and Darnell himself was sufficient to sustain the charges, I find the error harmless. However, I remind respondent that, in the case of a student disciplinary hearing, it is improper for the hearing officer to consider a witness"s written statement unless the witness is available for cross-examination.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Uebel, 38 Ed Dept Rep 375, Decision No. 14,058; Appeal of Cynthia and Robert W., et al., 37 id. 437, Decision No. 13,899). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner"s judgment for that of the board (Appeal of Uebel, supra; Appeal of Cynthia and Robert W., et al., supra). A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances such as where it is necessary to safeguard the well-being of other students (Appeal of McNamara, 37 Ed Dept Rep 326, Decision No. 13,871; Appeal of Osoris, 35 id. 250, Decision No. 13,531). The Commissioner has sustained a permanent suspension in the rare case where the evidence of extreme behavior compelled no other proper result (seee.g., Appeal of Sole, 34 Ed Dept Rep 270, Decision No. 13,305 (student was the instigator and primary participant in a major disturbance in the cafeteria, and was observed throwing two chairs, turning over a large lunch table and throwing two food trays like a "frisbee," and had an extensive anecdotal record that included involvement in four food fights, a physical fight with another student, an assault on a student, an act of vandalism of school property, endangering middle school students by jumping fully clothed into a pool while a class was in session, being found in an unauthorized area of school on six occasions and insubordination on four occasions). The Commissioner upheld the permanent suspension after observing that the student had exhibited "an alarming disregard for the safety of others." (Seealso, Appeal of McNamara, supra, where petitioner broke into respondent"s high school on New Year"s Eve armed with three propane bottles, a claw hammer and a hacksaw with the intention of interfering with the school"s heating and electrical systems. The record in that case reflects that if the student had succeeded in his plan, the possibility of an electrical fire or explosion the following day when the building was fully occupied was not remote).

I find Darnell"s misconduct very serious and wish to impress upon him that physical and verbal threats against students and staff are grossly inappropriate and will not be tolerated in a school setting. Indeed, such misconduct merits significant punishment. However, after carefully reviewing the record before me, I do not find the circumstances presented extreme enough to warrant Darnell's permanent suspension from school. Although Darnell has been suspended in the past, none of those suspensions exceeded five days. Because I find that a permanent suspension is excessive even after considering Darnell"s disciplinary record, I will substitute my judgment for respondent"s and direct that the suspension conclude at the end of the 2000-01 school year. I believe this penalty is sufficient to impress upon Darnell the seriousness of his previous misconduct and hope it will pursuade him to profitably use this opportunity to return to school to earn his high school diploma. Future proven serious misconduct may indeed warrant a permanent suspension.

In light of this disposition, I decline to address the parties" remaining contentions.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent admit petitioner"s son to the schools of the district at the commencement of the 2001-02 school year.

 

IT IS FURTHER ORDERED that respondent remove any reference to the suspensions of January 7, 1999 and May 11, 2000 from Darnell"s disciplinary record.

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