* Subsequent History: Matter of Board of Educ. of N. Rockland Cent. School Dist. v Mills; Supreme Court, Albany County; Motion to dismiss granted; April 13, 2007. *

Appeal of N.V. from action of the Board of Education of the North Rockland Central School District regarding student discipline.

Decision No. 15,466

(September 6, 2006)

Legal Aid Society of Rockland County, Inc., attorneys for petitioner, Annette C. Saviett, Esq., of counsel.

O’Connell & Riley, Esqs., attorneys for respondent, James K. Riley, Esq., of counsel.

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Rockland Central School District (“respondent”) to permanently suspend him from North Rockland High School (“high school”).  The appeal must be sustained in part.

During the 2004-2005 school year, petitioner (then 19 years old) attended 12^th grade at the high school.  At that time, he required two and a half credits to graduate.

On December 14, 2004, the high school principal notified petitioner that he was suspended for five days for “possession of more than 25 grams of marijuana on school grounds and within the school building.”  A superintendent’s hearing was scheduled for December 17, 2004 but was rescheduled at the request of petitioner’s parents and held before a hearing officer on January 21, 2005 to consider the charge against petitioner and determine whether additional discipline should be imposed.  By decision dated February 3, 2005, the superintendent accepted the hearing officer’s recommendations, found petitioner guilty of the charge and advised him that he would be permanently suspended.

Petitioner appealed the superintendent’s determination to respondent.  By letter dated April 22, 2005, respondent affirmed the superintendent’s finding of guilt and the penalty.  This appeal ensued.  On June 10, 2005, petitioner’s request for interim relief was denied.

Petitioner challenges the finding of guilt and also contends that the penalty is excessive.  Petitioner asserts that he did not have an attorney at the superintendent’s hearing and that neither he nor his parents understood the proceeding sufficiently to prepare for the hearing.  Petitioner seeks an order expunging the charge and permanent suspension.  Respondent contends that the record supports the finding of guilt and maintains that the penalty is appropriate and that the proceedings were in all respects proper.

I will first address a procedural issue.  Respondent submitted an application to submit a late answer with petitioner’s consent.  Although I have accepted the answer for consideration, I note that it contains an attachment, “Schedule A,” that was not part of the record at the superintendent’s hearing.  Schedule A consists of a copy of an additional disciplinary referral for petitioner dated November 11, 2004.  Although the additional information was available to the district prior to the superintendent’s hearing, it was not introduced into evidence.  Therefore, I decline to accept it at this juncture.

Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has 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 demonstrate any due process violation in connection with the disciplinary hearing.  Petitioner was fully apprised of his right to representation by an attorney.  At the hearing, petitioner and his parents stated that they had an attorney but, on the attorney’s advice, they would represent themselves. Petitioner was also informed of his right to present evidence and to question witnesses.  The record demonstrates that petitioner and his parents fully participated in the hearing and frequently exercised the right to question witnesses.

Petitioner also appeals the determination of guilt.  The 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 Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107).  In this case, two of respondent’s security officers testified that they saw petitioner transfer a plastic bag to another student; the bag was subsequently examined and found to contain 13 smaller bags of a combined total of 28 grams of marijuana.  The security officers, assistant principal and a police officer at the school all testified that petitioner admitted the bag of marijuana was his.  Petitioner denies making the admission.  With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036; Appeal of K.M., 41 id. 318, Decision No. 14,699).  Although petitioner’s mother asserts that respondent’s witnesses were talking together and “appeared to be coaching” each other, that assertion is speculative.  Petitioner provides no proof of any impropriety.  On the record before me, I find no basis to substitute my judgment for that of the hearing officer with respect to petitioner’s admission of guilt.

Petitioner further asserts that, at the hearing, his father argued several times that the bag of marijuana was not actually found on petitioner.  While petitioner did not have the bag on his person when he was questioned in the assistant principal’s office, both security guards testified that they saw him pass the bag to another student.  They further testified that, upon observing petitioner’s conduct, both students were immediately placed in custody of the security officers and taken to the assistant principal’s office where the other student turned the bag over.  That evidence, along with petitioner’s admission, establishes that he possessed marijuana in the school building.  Thus, on the record before me, I find 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.  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 of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).  A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary 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 Y.M., 43 Ed Dept Rep 193, Decision No. 14,968; Appeal of Coleman, 41 id. 101, Decision No. 14,628; Appeal of Dale C., 40 id. 70, Decision No. 14,423). The circumstances of this case do not meet that criteria.

Petitioner was found guilty of possession of a significant amount of marijuana.  Respondent maintains that the fact that the marijuana was divided into 13 bags indicates that petitioner intended to sell it at school -  constituting a risk to others.  In further justification of the penalty, respondent relies on petitioner’s past disciplinary record which consists of five short-term suspensions for chronic lateness, cutting class and insubordination/disorderly conduct.  Respondent further argues that permanent suspension is warranted, in part, because petitioner is repeating 12th grade and, in view of his disciplinary record, is disinterested in his education.

Although I agree that a significant penalty is appropriate, given the conduct proved, I find no basis for the extraordinary penalty of permanent suspension.  While petitioner’s anecdotal record reveals several prior suspensions, none appear to involve any serious misconduct.  Moreover, petitioner’s level of interest in education is irrelevant to any determination of penalty.  Petitioner has already been suspended for three semesters.  I find that this period of suspension should sufficiently impress upon petitioner the seriousness of his misconduct.  I encourage petitioner to profitably use his opportunity to return to school to acquire the two and a half credits he needs to earn his high school diploma.

Finally, in his demand for relief, petitioner requests an order granting him a review by the committee on special education (“CSE”) to obtain an evaluation for any necessary services.  If petitioner still seeks such review, he should make a written referral to the CSE (8 NYCRR §200.4).

In view of the above disposition, I need not address petitioner’s remaining claims.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent admit petitioner to the North Rockland Central School District; and

IT IS FURTHER ORDERED that respondent remove any reference to a permanent suspension from petitioner’s disciplinary record and adjust such record in accordance with the terms of this decision.

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