Appeal of M.H., on behalf of her daughter M.H., from action of the Board of Education of the North Syracuse Central School District regarding student discipline.

Decision No. 15,254

(July 15, 2005)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Larry P. Malfitano, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Syracuse Central School District ("respondent") to suspend her daughter, M.H., from school. The appeal must be dismissed.

During the 2004-2005 school year, M.H. was a fifth grade student attending Roxboro Road Middle School. On October 19, 2004, M.H. and another student allegedly wrote a bomb threat on a stall in the fifth grade girls' bathroom.

A superintendent's hearing was held on October 27, 2004 and the hearing officer found M.H. guilty of reckless endangerment, insubordination, disruptive behavior and writing part of a bomb threat. The superintendent suspended M.H. for the remainder of the 2004-2005 school year. Petitioner appealed the suspension. On December 6, 2004, respondent upheld the superintendent's determination. This appeal ensued. On January 18, 2005, petitioner's request for interim relief was denied.

Petitioner seeks expungement of M.H.'s records. Petitioner contends that her daughter was unable to fully understand the consequences of her actions. Petitioner also asserts that respondent failed to follow district policy that states that discipline will be progressive, as a general rule, and that the student's age, the nature of the offense and circumstances that led to the offense will be considered in determining the penalty.

Respondent states that the district has experienced a number of bomb threats over the past several years and that it adequately informed both students and parents of the consequences of participating in a bomb threat. Respondent argues that M.H. admitted to contributing to the bomb threat and that she was properly suspended for the remainder of the school year.

Because M.H. was suspended for the remainder of the 2004-2005 school year, which has ended, the appeal is moot except to the extent that petitioner seeks expungement of M.H.'s records (Appeal of M.P., 44 Ed Dept Rep 132, Decision No. 15,123; Appeal of a Student with a Disability, 43 id. 372, Decision No. 15,021; Appeal of M.K., 42 id. 405, Decision No. 14,894).

Education Law �3214[3][a] authorizes a board of education to suspend a "pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others." 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 CSD v. Commissioner of Education, et al., 91 NY2d 133; Bd. of Educ. of the City School Dist. of the City of New York v. Mills, et al., 293 AD2d 37). In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved ( Appeal of P.M., 44 Ed Dept Rep ___, Decision No. 15,223; Appeal of J.J., 44 id. 113, Decision No. 15,115; 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 P.M., 44 Ed Dept Rep ___, Decision No. 15,223; Appeal of J.J., 44 id. 113, Decision No. 15,115).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

I find substantial evidence in the record to support the finding of guilt. Petitioner admits that M.H. participated with another student in writing the bomb threat. Within a month before the incident at issue, there was one district-wide bomb threat and two other bomb threats at M.H.'s school. Respondent submitted evidence that it notified parents and students that bomb threats would not be tolerated and would have serious consequences. For example, letters from the superintendent were sent home to parents informing them of the prior incidents and stating that law enforcement officials were actively pursing the person or persons responsible. Respondent's parent/student handbook, provided to every student at the beginning of each school year, states that "bomb scares" are treated seriously and that the district would prosecute all perpetrators to the fullest extent permitted by law. In addition, the middle school principal made announcements over the school's public address system that bomb threats of any kind would not be tolerated. Petitioner was present at the hearing and did not indicate at that time that M.H. did not understand the seriousness of her action or that she did not know the consequences. Moreover, petitioner did not submit a reply to respondent's answer. Therefore, after reviewing the record, I find no basis for overturning respondent's finding of guilt.

I also decline to disturb the penalty. As stated above, M.H. admitted to contributing to the bomb threat. As a result of the October 19, 2004 incident, students were relocated, the school was searched, and dismissal time was delayed. The threat caused a loss in instruction time for students and distress and inconvenience to district staff, students and parents. Respondent' s superintendent avers that she considered all of the relevant facts and circumstances, including the nature of the incident, its effect on school operations and M.H.'s particular circumstances and background. Based on the record before me, I find that the penalty imposed in this case is not irrational or unreasonable and is within respondent's discretion (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131). Accordingly, I will not substitute my judgment for that of respondent.

THE APPEAL IS DISMISSED.

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