Appeal of K.P., on behalf of her child, from action of the Board of Education of the Alfred-Almond Central School District regarding student discipline.

Decision No. 18,055

(November 2, 2021)

Gattuso & Ciotoli, PLLC, attorneys for respondent, Stephen Ciotoli, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Alfred-Almond Central School District (“respondent”) to impose discipline on her child (“the student”).  The appeal must be sustained.

The student attended eleventh grade in respondent’s high school during the 2020-2021 school year.  On April 29, 2021, the student’s English class discussed Shakespeare’s Macbeth.  According to the classroom teacher, at one point the class discussed how Lady Macbeth was “crazy and want[ed] to kill the king for gain.”  In response, the student declared that, “if he were ever convicted of a crime he would go on a killing rampage and kill at least 5 random people to make certain he was going [to prison] for life.”  The teacher replied that the student “should not think that statements like that were funny.”  In response, the student indicated that he “was not joking and ... would kill as many people as he could if he was going to go to jail anyway.”  The teacher told the student that respondent’s counselors could “help [him] with negative feelings,” and she “warned him that he should not be surprised if he were called out of another class to meet with [a counselor].”  The class resumed discussing Macbeth, which occupied the remainder of the period.

In a written notice dated April 30, 2021, the high school principal indicated that the student had been found guilty of violating the district’s code of conduct for “verbal or physical intimidation” and for “disrupting the educational process.”  The principal imposed four days of out-of-school suspension and a single day of in-school suspension; she also required the student to attend counseling sessions.  Petitioner appealed the suspension to respondent, requesting that the suspension be overturned.[1]  On May 5, 2021, respondent modified the suspension to three days of out-of-school suspension and two days of in-school suspension.  This appeal ensued.

Petitioner contends that, although the student made the statement attributed to him, no suspension was appropriate under the circumstances.  Petitioner argues that the student’s comment “was taken out of context and ... made in response to the graphic and violent material that the class was reading.”  Petitioner further submits that the student merely sought to participate in class discussion and did not cause, or intend to cause, any disruption.  Petitioner requests expungement of the suspension from the student’s record.

Respondent contends that it acted within its discretion in suspending the student for his comments.

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 shocking to the conscience as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of C.N. and C.N., 60 Ed Dept Rep, Decision No. 17,954).  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 P.C. and K.C., 57 id., Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has met her burden of proving that the student’s suspension was excessive under the circumstances.  The student’s comments must be considered in context; they were made during a classroom discussion of Macbeth, a play that centers on whether its protagonist, urged on by the unrepentant Lady Macbeth, should murder, among other characters, the King of Scotland.  In her statement, the classroom teacher indicates that she “was explaining ... that Lady Macbeth was ... a negative influence on her husband because she made plans to convince [him] ... to kill the king of Scotland for personal gain.”  The teacher further indicates that she referred to Killer Couples, a television show that profiles real-life couples “who commit murders for profit.”  A special education teacher who was also in the classroom recalled that, while discussing the “creepy” nature of Lady Macbeth, the teacher relayed “a short story of how she once had neighbors who were on the show Killer Couples.”  The student then made the comments described above.  Thus, in this context, the student’s comments were at least tangentially related to the plot of the play, the classroom discussion of Macbeth’s dramatis personae, and the television show the teacher used as a modern comparison.

After the student made the comments at issue, a classmate declared:  “I don’t think you should be saying this in a school.”  The teacher indicates that she worried that the student was “expressing his actual feelings” and “suggest[ed] to him that [respondent had] counselors ... to help with negative feelings.”  The special education teacher states that she heard the student say that he “doesn’t think this way on purpose[;] it just happens naturally.”  The teacher then said that the student “should not be surprised if [he] were called out of another class to meet with [the counselors].”  According to the special education teacher, the student “laughed” in response, and “the remainder of class time was used ... reading Macbeth.”  In an email sent by the teacher the next day, she indicated that “some of [the student’s] classmates were concerned,” and that she, too, felt the student “should be helped in some way.”

In light of the fact that the student made these remarks during a class conversation of Macbeth and Killer Couples, respondent’s subsequent exclusion of the student from the classroom environment for several days was inappropriately punitive (see Appeal of Pierson and Pierson, 34 Ed Dept Rep 517, Decision No. 13,399; see generally Appeal of N.V.D., 60 id., Decision No. 17,985).  The student did not directly threaten any specific person, nor does it appear that the class was significantly disrupted by his statements.  Notably, no one considered the student’s comment sufficient to warrant his immediate removal from the classroom (see Education Law § 3214 [3-b] [2]).  This contradicts the board president’s suggestion that the student was a “violent student” pursuant to Education Law § 3214.  The student’s conduct here does not approach the serious level of offenses described in that law, including possession of a firearm, physical assault, or a direct threat to use a deadly weapon (see Education Law § 3214 [2-a]).  Further, respondent’s suggestion that a greater period of suspension was warranted given the student’s prior disciplinary history is without merit.  There is no evidence that the incident at issue in this appeal bore any relationship to any prior disciplinary incidents, the most recent of which occurred 15 months prior to the events described herein. 

Respondent’s instinct to provide counseling to the student was laudable given the teachers’ concerns, and the district should continue to follow up with the student in this regard.[2]  Respondent’s imposition of five days of both in-school and out-of-school suspension, however, was excessive under the circumstances. 

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the suspension of the student described herein is annulled and expunged from his record.

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