Suspension still spoils student's record; parents' $1 million civil suit continues

NEW YORK — “Although student disciplinary hearings are serious and adversarial in nature, students are not entitled to the procedural protections of a criminal trial,” Chief Judge Judith Kaye wrote in a unanimous decision for the New York State Supreme Court, Appellate Division in early December.

In the case, the court barred State Education Commissioner Richard Mills from removing a 10-day suspension from the school records of Josh Herzog. Herzog, then a senior at Monticello High School, was suspended for producing and distributing an underground newspaper in January 1995.

Herzog wrote and produced the newspaper entitled Sub Station in his home. Sub Station contained some vulgar language and urged other students to urinate in the school1s hallways, smoke in the bathroom and scrawl graffiti on the walls. Herzog apparently made copies of the paper at his own cost and distributed them to other students of the school.

In a hearing, Mills decided that the assistant principal1s testimony was not enough to find Herzog guilty of “endangering the safety, health or welfare of others.” As a result, he sought to omit the suspension from Herzog’s file. Mills also concluded that school officials violated Herzog’s right to due process by not warning him specifically enough about the reasons for his disciplinary hearing.

The New York Supreme Court’s judgment overturned Mills’ prior decision in the case, noting that the burden of proof on the school districts is not as restricting as in a formal trial. Kaye wrote, “Evidence may consist of hearsay and reasonable inferences….”

Mark Schulman, Herzog1s attorney, told an Associated Press reporter, “The student really has to come in and prove innocence rather than have the school prove anything. This has serious repercussions for students across the state.”

Schulman also added that he was disappointed that the court did not take Herzog1s First Amendment right to freedom of expression into account.

Despite the way in which this case was decided, Herzog still has another chance against the school district — he and his parents are attempting to sue the district for $1 million. According to Jonathan Lovett, the attorney who is handling the civil suit, the school is appealing the federal district court’s decision that members of the school district are not immune from the civil suit.

The Herzogs claim that their civil rights were violated when school officials and police entered the Herzog home, without the parents present, to seize the computer disk Josh used to create Sub Station.

Even if the circuit court rules that the school officials may not be sued, the civil case will proceed against the police and the municipality. Lovett expects that a trial date will be set sometime in the fall.

reports, Spring 1998