Decision No. 14,681

(January 29, 2002)

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Mount Sinai Union Free School District ("respondent") to suspend his son, D.G., from its schools. The appeal must be sustained in part.

On November 21, 2000, D.G., a seventh-grade student in respondent's schools, "cut" science class, went into a school bathroom, wrote a bomb threat on the bathroom wall and threw wadded-up wet paper towels at the bathroom walls and partitions. According to respondent, on November 29, 2000, the date specified in the bomb threat, hundreds of the school's students were absent and law enforcement agencies were called in for assistance. At some point, respondent's administrators interviewed D.G., who wrote a statement admitting that he was responsible for writing the bomb threat. Another student, who had cut class with D.G. and was in the bathroom with D.G. when he wrote on the wall, also made a written statement identifying D.G. as the perpetrator. A disciplinary hearing pursuant to Education Law "3214 was held on December 11, 2000. By letter dated December 20, 2000, respondent's superintendent notified petitioner that he had accepted the findings and recommendation of the hearing officer and D.G. was suspended for 307 school days, a period that covered the remainder of the 2000-01 school year and the entire 2001-02 school year. Petitioner appealed to respondent. By letter dated March 6, 2001, respondent notified petitioner of its decision to uphold the suspension. This appeal ensued. Petitioner's request for interim relief was denied on April 18, 2001.

Petitioner contends that D.G.'s due process rights were violated because respondent's hearing officer allegedly acted as prosecutor and witness and because he failed to review D.G.'s anecdotal record at the hearing. Petitioner further claims that D.G.'s due process rights were violated because the audiotape recording of the hearing was inaudible in places. Petitioner argues that respondent was swayed by information that was not part of the hearing testimony, namely that D.G. used the word "Columbine" in his bomb threat and that the threat seriously impacted the school community. Petitioner asserts that the suspension is unfair and excessive, that respondent failed to provide alternative education in a timely manner and that similar threats by other students in the months following D.G.'s suspension were treated less seriously by respondent. Petitioner requests that D.G.'s suspension be overturned and his record expunged.

Respondent contends that D.G.'s suspension was based solely on the bomb threat and that his anecdotal record was not considered in the penalty determination. Respondent further contends that the gaps in the hearing audiotape are minor because D.G.'s admission of guilt was clearly audible, as was the majority of the testimony. Respondent asserts that the penalty imposed was not excessive given the gravity of the offense and its impact on the school community. Respondent argues that any imperfections in the disciplinary process do not warrant overturning the penalty.

Initially, I will address petitioner's due process contentions. I do not find the absence of a review of D.G.'s anecdotal record at the hearing to be a due process violation in this case. Respondent's superintendent states in his affidavit that D.G.'s prior disciplinary history, which consisted of minor infractions, played no part in his decision to impose a 307-day suspension. He also states that the reference to a review of the anecdotal record in his decision was merely standard language that he routinely includes in student suspension determinations. Petitioner raised the issue on appeal to respondent, which accepted the superintendent's explanation and, in upholding the suspension, noted that even the charges of cutting class and throwing paper towels were never discussed. Respondent stated that the bomb threat alone was the basis for the suspension and found the 307-day suspension appropriate for that offense. Thus, I do not find a due process violation under these circumstances. However, I remind respondent to adhere to proper procedures regarding the review of anecdotal records in the future (see, Appeal of a Student with a Disability, 41 Ed Dept Rep ___, Decision No. 14,678).

Petitioner alleges that the hearing officer demonstrated bias by acting as both hearing officer and prosecutor and claims that he was the only person present at the hearing who asked questions and submitted evidence. Petitioner also objects to the hearing officer's statements regarding the impact of the bomb threat on the school community. Although student disciplinary hearings are serious and adversarial in nature, students are not entitled to the procedural protections of a criminal trial (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133). As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Id. at 140). In this case, petitioner was notified in the suspension letter of his right to question witnesses against him and to present evidence and witnesses on his behalf at the hearing, and he does not claim that the hearing officer refused him that opportunity.

As for the contention that the hearing officer improperly testified at the hearing, the transcript of the hearing shows that the hearing officer delivered a brief lecture to D.G. regarding the seriousness of D.G.'s actions and the impact of them on the school community. No other evidence regarding impact was introduced at the hearing. A hearing officer's mere possession of prior knowledge is not a violation of petitioner's due process rights (Appeal of Meredith, 33 Ed Dept Rep 530, Decision No. 13,138). Due process is not violated unless the hearing officer with prior knowledge of the underlying event allows this prior knowledge to improperly influence his decision or uses his prior knowledge as a basis for his decision as an alternative to evidence presented during the hearing (Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241; Appeal of Meredith, supra). In this case, it is clear from the hearing transcript and recommendation to the superintendent that the hearing officer's determination was influenced by his personal knowledge of events. While this is clearly improper, it does not alter the fact that D.G. admitted to writing the bomb threat. However, I admonish respondent to revise its procedures to ensure that future superintendent's hearings are conducted in an impartial manner and that determinations are based on properly introduced and accepted evidence (see, Appeal of Dashe, 31 Ed Dept Rep 195, Decision No. 12,617; Appeal of Snowberger, 24 id. 256, Decision No. 11,386; Appeal of DeVore, 11 id. 296, Decision No. 8,469).

With regard to petitioner's claim that portions of the audiotape were inaudible, I note that an intelligible record of the hearing must be maintained in order to permit a meaningful review (Education Law "3214[3][c]; Matter of Labriola, 20 Ed Dept Rep 74, Decision No. 10,321). Although petitioner contends that the transcript omits certain statements of the principal, petitioner and his son, he does not cite these statements or articulate how they might have mitigated against the finding of guilt or penalty imposed. In an appeal to the Commissioner, a petitioner bears the burden of establishing all the facts upon which he seeks relief and demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of Wendy and Robert L., 39 Ed Dept Rep 224, Decision No. 14,222). Absent any such evidence, I decline to overturn respondent's determination on this ground. I remind respondent, however, of its obligation to maintain a record of the hearing in accordance with Education Law "3214(3)(c).

A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Board of Education of Monticello Central School District v. Commissioner of Education, supra; Appeal of Mace, 40 Ed Dept Rep 110, Decision No. 14,433; Appeal of Joseph F., 39 id. 242, Decision No. 14,226). In cases of suspension, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Ravick, 40 Ed Dept Rep 262, Decision No. 14,477; Appeal of Guevara, 39 id. 494, Decision No. 14,291; Appeal of Esther F., 39 id. 357, Decision No. 14,258). The test to be applied in reviewing the penalty is whether the penalty imposed was so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of Ravick, supra; Appeal of Guevara, supra; Appeal of Esther F., supra).

Petitioner argues that the alleged due process violations and exaggerations considered by respondent on appeal unfairly prejudiced D.G. and led to an excessive penalty. For example, the record before respondent contained documents, including letters from respondent's attorney that quoted the bomb threat as "11/29/00 the school and kids r going to die bomb just like Columbine" and references the disruption of the school community. Petitioner contends, and respondent does not dispute, that this specific information was not part of the hearing record.

Education Law "3214(3)(c) provides, in pertinent part:

Although statutory provisions do not preclude the presentation of arguments to a board of education on appeal of a suspension determination (Appeal of Wilson, 28 Ed Dept Rep 254, Decision No. 12,098; Appeal of Spink, 25 id. 129, Decision No. 11,520), the underlying determination must be based on evidence produced at a hearing (Appeal of Snowberger, supra). Due process requires that a student be given a fair opportunity to rebut the evidence against the student (Board of Education of Monticello Central School District v. Commissioner of Education, supra). While D.G. admitted to making a bomb threat, the notice of charges, D.G.'s statement and the hearing testimony did not establish the exact language of the threat nor did they contain any reference to Columbine. Therefore, it was inappropriate for respondent to consider the language contained in its attorney's letter in assessing an appropriate penalty.

As I indicated in Appeal of Joseph F., supra: "There can be no greater concern than the safety of our school children. Students must learn that such 'pranks' will not be tolerated under any circumstances." I view the misconduct committed by petitioner's son seriously and think a serious penalty is, therefore, appropriate. However, in view of the significant procedural shortcomings discussed above, I think that a reduction of the suspension imposed upon petitioner's son to the date of this decision is sufficient to impress upon this student the seriousness of his actions and to prevent their repetition.

Finally, respondent admits that there was a delay in providing alternative instruction and states that it will provide D.G. with compensatory education to make up for the delay. Education Law "3214(3)(e) provides in pertinent part: "Where a pupil has been suspended " and said pupil is of compulsory attendance age, immediate steps shall be taken for his or her attendance upon instruction elsewhere..." The term "immediate" does not mean instantaneous, but it does mean that a school district should act reasonably promptly with regard for the nature and circumstances of the particular case (Turner v. Kowalski, 49 AD2d 943 [2d Dept 1975]; Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419). Respondent is admonished to comply in the future with the dictates of Education Law "3214 regarding the provision of alternative instruction to students of compulsory school age.

THE APPEAL MUST BE SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent admit petitioner's son to the schools of the district effective immediately.

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