Appeal of T.C., on behalf of her son J.M., from action of the Board of Education of the LaFayette Central School District regarding student discipline.

Decision No. 15,186

(March 7, 2005)

Ferrara, Fiorenza, Larrison, Barrett, Reitz, P.C., attorneys for respondent, Craig M. Atlas, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the LaFayette Central School District ("respondent") to permanently suspend her son, J.M. from the LaFayette Junior-Senior High School ("high school"). The appeal must be sustained in part.

During the 2003-2004 school year, J.M. attended the 11th grade at the high school. On January 21, 2004, the high school principal notified petitioner that J.M. was being suspended for five days for use of an illegal substance (marijuana) on school property, endangering the safety of himself and others, and possession of a lighter.

A superintendent's hearing was held on January 26, 2004 to consider the charges against J.M. and to determine whether additional discipline should be imposed. By letter dated January 27, 2004, the superintendent informed petitioner that he found J.M. guilty of marijuana usage and endangering the welfare of others and advised that J.M. would be permanently suspended from the high school. The letter also advised petitioner that J.M. was eligible to receive tutoring for the remainder of the 2003-2004 school year and that he would be allowed to attend a BOCES alternative education high school ("BOCES program") in September 2004 on the condition that he receive counseling. Petitioner appealed this determination to respondent.

Petitioner was notified by letter dated February 26, 2004 that a portion of "phase two" of the hearing (penalty phase) had to be reconvened since the tape recorder malfunctioned at the superintendent's hearing. On March 1, 2004, the superintendent reheard evidence about J.M.'s anecdotal record. The superintendent did not modify the initial penalty determination.

By letter dated March 26, 2004, respondent affirmed the superintendent's findings of guilt and the penalty with the modification that counseling could not be a condition to J.M.'s entry into the BOCES program. This appeal ensued.

Petitioner contends that J.M. was not guilty of smoking marijuana and that he was found guilty before she was given the opportunity to question a relevant witness. She alleges that her son was denied his civil and due process rights. Petitioner requests that J.M. be permitted to attend the BOCES program at the district's cost and expense. She also requests that I reverse the superintendent's decision and expunge the charges from J.M.'s school record. Finally, she requests that respondent and the superintendent be reprimanded for the "improper handling of this matter."

Respondent contends that the appeal is moot. Respondent also contends that its decision is supported by the evidence and that petitioner fails to state a claim upon which relief may be granted. Respondent alleges that petitioner was given the opportunity to question her witness prior to a final determination of guilt and maintains that the constitutional rights of petitioner and her son were not violated. Respondent also asserts that the district and petitioner have agreed that J.M. will attend the BOCES program beginning September 2004. Finally, respondent alleges that there is no basis for a reprimand.

I will first address a preliminary issue. Respondent submitted an affidavit in response to petitioner's reply, and petitioner submitted a reply to that affidavit. These submissions address whether an application had been made to enroll petitioner's son in the BOCES program. Neither party has objected to the others submission. Therefore, pursuant to �276.5 of the Commissioner's regulations I will accept them for consideration.

Respondent argues that the appeal should be dismissed as moot. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exist or in which subsequent events have laid to rest. (Appeal of L.H., 43 Ed Dept Rep 315, Decision No. 15,005; Appeal of D.T. and M.M., 43 id. 58, Decision No. 14,916). In this appeal, petitioner requests that the student's records be expunged. I find, therefore, that a current controversy remains and the appeal will not be dismissed as moot.

Education Law �3214(3)(c) provides that no pupil may be suspended in excess of five days unless the pupil and person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil should have the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf. Petitioner has failed to supply any evidence that due process violations occurred in connection with the disciplinary hearing. Petitioner's claim that she was denied the opportunity to question her witness prior to a final determination of guilt is without merit. The hearing transcript reveals that there was some initial confusion as to whether petitioner's witness would testify during phase one or phase two of the hearing. As a result, the superintendent initially found J.M. guilty prior to the testimony of petitioner's witness. However, once it was determined that the witness's testimony was relevant to phase one of the hearing, the superintendent immediately allowed petitioner to question the witness fully.

Petitioner also claims, in a conclusory fashion, that respondent has violated her son's civil rights. Petitioner presents no facts or details with respect to this claim, nor does she allege the basis upon she believes her son may have been discriminated against by respondent. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he seeks relief and the burden of demonstrating a clear legal right to the relief sought (8 NYCRR �275.10; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107; Appeal of D.T. and M.M., supra). Petitioner has failed to meet this burden.

Petitioner further appeals the determination of guilt. 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 (Bd. of Educ. of Monticello Central School Dist. v. Commissioner of Educ., et al., 91 NY2d 133, 140-141; Bd. of Educ. of City School Dist. of City of New York v. Mills, 293 AD2d 37). In this case, the teacher witness provided direct testimony that he entered the boy's bathroom on three separate occasions, one right after another. On the first occasion, he did not see or smell smoke, but looked under the stall and observed J.M.'s sneakers. On the second occasion, he heard a marijuana pipe known as a "bubbler." On the third occasion, he smelled marijuana and saw smoke. After exiting the bathroom for the third time, he waited in the hall a short distance from the bathroom door. Shortly thereafter he observed J.M. exit. At no time did he observe anyone other than J.M. in or near the bathroom. J.M. admitted that he was in the bathroom and did not see or hear anyone else in the vicinity at that time of the incident. Petitioner produced no witnesses and introduced no evidence to refute this testimony. The Commissioner will not substitute his judgment on witness credibility unless findings are not supported by the facts or the record (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of S.C., 43 id. 222, Decision No. 14,978). On the record before me, I find that respondent based its decision on competent and substantial evidence.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of K.S., 43 Ed Dept Rep 492, Decision No. 15,063; Appeal of Student with a Disability, 43 id. 213, Decision No. 14,975; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960). 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 M.F. and J.F., supra; Appeal of K.S., supra). A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinarily circumstances, such as where the student exhibits "an alarming disregard for the safety of others" and where it is necessary to safeguard the well being of other students (Appeal of L.T., supra; Appeal of Y.M., 43 id. 193, Decision No. 14,968; Appeal of Coleman, 41 id. 101, Decision No. 14,628). The circumstances in this case do not meet those criteria.

Although respondent's decision referred to a permanent suspension, what respondent actually imposed amounted to a suspension until the end of the 2003-2004 school year followed by an involuntary transfer to the BOCES program. In light of the seriousness of J.M.'s conduct, I cannot conclude that the five-month suspension actually imposed was inappropriate.

With respect to the transfer, such a transfer imposes a disciplinary penalty that is not authorized by Education Law �3214 and is therefore invalid (Appeal of K.B., 41 Ed Dept Rep 431, Decision No. 14,737; Appeal of a Student Suspected of Having a Disability, 40 id. 212, Decision No. 14,464, judgment granted dismissing petition to review, January 18, 2001, Sup. Ct., Albany Co., (Keegan J.), n.o.r.; aff'd 293 AD2d 37). Petitioner, however, has since agreed to the reassignment of her son to the BOCES program, and her pleadings actually demand it. Nevertheless, respondent is reminded of the need to fully comply with all laws and regulations governing student discipline in the future.

Finally, I decline to grant petitioner's request for a reprimand. I do not have the authority to censure or reprimand a board of education or district staff (Appeal of Angrisani and Hamilton, 41 Ed Dept Rep 6, Decision No. 14,593; Appeal of D. H., 41 id. 142, Decision No. 14,640).

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent expunge any reference to a permanent suspension from J.M.'s disciplinary record and adjust such record in accordance with the terms of this decision.

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