Appeal of K.K., on behalf of his son D.K., from action of the Board of Education of the Great Neck Union Free School District regarding student discipline.

Decision No. 16,358

(May 11, 2012)

Frazer & Feldman, LLP, attorneys for respondent, Joseph Lilly, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) to uphold the suspension of his son, D.K.  The appeal must be dismissed.

During the 2009-2010 school year, D.K. attended 12th grade in respondent’s district.  On January 8, 2010, D.K. was found to be in possession of marijuana while on the grounds of respondent’s high school.  The principal suspended D.K. for five days – Friday, January 8 through Thursday, January 14, 2010.  By letter dated January 11, 2010, petitioner was notified that D.K. was charged with:

(1) having engaged in conduct which is insubordinate or disorderly or violent or disruptive and/or a danger to the safety, morals, health or welfare of himself or of others; and/or  (2) is a violation of the Great Neck Union Free School District Code of Conduct ....

The letter also stated that a superintendent’s hearing would be held on January 15, 2010.

Pursuant to petitioner’s request, the hearing was adjourned until January 26, 2010.  At the hearing, D.K.’s attorney entered a plea of guilty to both charges on D.K.’s behalf and the hearing proceeded to the penalty phase.  By letter dated February 8, 2010, the superintendent adopted the hearing officer’s recommended penalty suspending D.K. for the remainder of the 2009-2010 school year.  Petitioner appealed to respondent and, by letter dated April 27, 2010, respondent notified petitioner that it affirmed the suspension.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 27, 2010.

Petitioner contends that the suspension was imposed in violation of D.K.’s due process rights and the district’s Code of Conduct, that the penalty was excessive and that the hearing officer and superintendent acted inappropriately.  Petitioner requests reversal of the suspension and expungement of D.K.’s records.

Respondent contends that the decision to suspend D.K. was based on competent and substantial evidence, the penalty was not excessive and that petitioner has not met his burden of proof.  Respondent also maintains that petitioner was afforded appropriate due process and that the hearing officer and superintendent acted properly at all times.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Because D.K. has served the suspension, the appeal is moot except to the extent that petitioner seeks expungement of the suspension from D.K.’s record (Appeal of L.O. and D.O., 47 Ed Dept Rep 194, Decision No. 15,666; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student with a Disability, 44 id. 136, Decision No. 15,124).

Petitioner asserts that the notice of hearing prior to D.K.’s long–term suspension was improper, violated D.K.’s due process rights and prejudiced the hearing process.  Specifically, petitioner asserts that the notice improperly indicated that D.K. was involved in conduct which was “violent or insubordinate.”  According to the record, the notice stated that D.K. was engaged in conduct:

that was insubordinate or disorderly or violent or disruptive and/or otherwise a danger to the safety morals, health or welfare of himself and/or others ....

Thereafter, the specifications of the charge are set forth, in essence, stating that on or about Friday, January 8, 2010, D.K. was in possession of an illegal substance, namely marijuana, while on the premises of Great Neck South High School.

The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,168; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  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 (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings (Bd. of Educ. of Monticello Cent. School Dist. at 136). 

The use of the conjunction “or” in the charge indicates that each category of conduct stands alone and that all categories are not necessarily applicable to the charge against the student.  The charge and specifications are sufficient to afford the student adequate notice of the incident giving rise to the proceedings.  Moreover, petitioner has provided no evidence that the language used in the notice resulted in any prejudice to D.K.  Accordingly, I cannot conclude that D.K.’s due process rights were violated by inclusion of the terms “violent” or “insubordinate” in the hearing notice or that the notice was otherwise improper.

The record indicates that D.K., through counsel, admitted to possession of marijuana while on the premises of respondent’s high school.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745). 

Petitioner’s allegation that the penalty is excessive is without merit.  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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner asserts that, in assessing the penalty, respondent failed to present evidence at the hearing that D.K.’s imposed penalty was “consummate [sic]” with other penalties imposed on students in similar situations.  The fact that other students may have received different penalties for similar misconduct does not, of itself, provide a basis for nullifying the discipline imposed on D.K., as various factors such as age, circumstances surrounding the offense and prior disciplinary record may support the imposition of varying penalties.  (seeAppeal of L.T., 50 Ed Dept Rep, Decision No. 16,242).

Petitioner further asserts that respondent improperly failed to consider D.K.’s “good character” in determining the penalty to be imposed.  According to the record, both the hearing officer and superintendent noted in their reports that they did consider evidence of D.K.’s positive behavior and character, including his enrollment in a drug treatment program and volunteer work, in determining an appropriate penalty.

Moreover, the hearing officer and superintendent also properly considered D.K.’s anecdotal record, which included a prior suspension for possession of marijuana with intent to sell.  A student’s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty, and only if notice of its contents has been given in advance to the student (Appeal of a Student Suspected of Having a Disability, 46 Ed Dept Rep 453, Decision No. 15,562; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337; Appeal of D.F.B., 43 id. 496, Decision No. 15,064).

Finally, the record does not support a finding of bias on the part of the superintendent, as petitioner claims. 

Given the seriousness of the offense and D.K.’s prior drug related suspension, I cannot conclude on this record that petitioner has carried his burden of establishing that the penalty of suspension for the remainder of the 2009-2010 school year was excessive.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE.