A New York state judge will not disturb a decision by a school superintendent to suspend a student for giving a teacher "noogies" on two occasions when she allegedly asked him to stop.
In Mirenberg v. Lynbrook Union Free School District, 1873/08, Supreme Court Justice Thomas P. Phelan of Nassau County ruled that 14-year-old Ethan Mirenberg had not exhausted the administrative avenues available to him for challenging a nine-month suspension levied by Superintendent Phillip Cicero.
"The court is not inclined to substitute its judgment for the Education Department," Phelan wrote in denying a motion to stay Ethan's suspension, expunge all records of the incident and allow him to return to Lynbrook High School.
On Dec. 5, 2007, Ethan, represented by counsel, appeared for a school disciplinary hearing on charges he "forcibly pressed his knuckles against [the] scalp" of a teacher on two occasions and violated the academic code of conduct by entering his former middle school without permission.
Terence E. Smolev, a partner in the Mineola, N.Y., firm of Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, presided over the hearing.
According to Phelan's decision, on Nov. 2, 2007, during a school-sponsored basketball game, Ethan approached his former teacher, Sharon Cantante and "forcibly pressed his knuckles against her scalp, grinding them into her scalp and causing her pain."
In court documents, Cantante testified that she told Ethan to stop but did not inform any other staff member or call police. She also testified that Ethan only had one hand on her scalp and did not prevent her from moving away from his grasp. However, she alleged that he "continued to follow [her] as she attempted to move away from him and continued to forcibly press his knuckles against her scalp."
When asked why she had not reported the incident, Cantante replied that she "felt that [Ethan] had learned his lesson."
The ninth-grader also was charged with entering the South Middle School on Nov. 7, 2007, "without permission of the building administrator," a violation of the district code of conduct. During that visit, he allegedly entered Cantante's classroom, "forcibly grabbed her around the neck, holding her tightly and simultaneously ground his knuckles into her scalp, causing her pain."
This time, according to the decision, the principal was called.
Ethan testified at the hearing that he was a 5-foot-4-inch, 155-pound athlete who competed in several sports including lacrosse and wrestling. Cantante testified that she is 4 foot 11 inches and weighs approximately 115 pounds.
Ethan's description of the events differed from Cantante's. He testified that he had "lightly patted [Cantante] on her head in a playful way" at the school basketball game, and had "gently patted her on the head" in her classroom.
Further testimony revealed prior disciplinary issues during Ethan's seventh- and eighth-grade years, as well as his receiving counseling with a social worker during most of eighth grade.
Upon conclusion of the hearing, Smolev found Ethan guilty of all charges and stated that he would "recommend to the Superintendent that this student be suspended from school to and including November 7th, 2009 ... and that he be permitted to come back to school in his 11th grade."
Ultimately, Cicero determined that a suspension through Sept. 2 of this year would be appropriate. The school board upheld the decision, noting that its ruling could be appealed to the state education commissioner.
That appeal would be futile, said Mark L. Lubelsky, whose Manhattan firm represented Ethan until recently.
"By the time you get a decision [on the appeal], the suspension has already been served," Lubelsky said in an interview. "What was done to this kid was unfair."
Smolev, argued Lubelsky, was a "biased" decision maker who had already made up his mind prior to the hearing. Lubelsky pointed to the transcript of the hearing as evidence of what he described as confrontational questioning by Smolev.
According to court documents, Smolev read Ethan his Miranda rights and "forced a waiver of those rights." During the hearing, according to the transcript, Smolev asked Ethan "How many lies have you told me?" and stated, "I already know you are a liar, correct?"
In another exchange, when Ethan asked to be explained the meaning of the word "fathom," Smolev replied: "In 8th grade you got anywhere from 91 to 99 in English and you don't know what the word 'fathom' is?"
Lubelsky argued that Ethan's constitutional due process rights were violated by a "biased decision maker."
Justice Phelan disagreed.
"As submitted by respondents, Ethan was afforded due process having been given adequate notice of the charges against him and having been represented by counsel at the hearing," wrote the judge.
The judge declined to find that there was a predetermination of guilt by Smolev, noting that the record was reviewed by the school superintendent who issued the modified suspension.
"Although the Superintendent acknowledged that the 'teacher's and the student's version of the events are diametrically opposed,' he found 'no motivation for the teacher to fabricate the two separate incidents' and concurred with the Hearing Officer that the 'student's story [w]as simply not credible,'" wrote Phelan.
Smolev declined to comment on the decision.
Florence Frazer of Garden City, N.Y.-based Ehrlich, Frazer & Feldman represented the school district. Frazer said a notice of appeal on the decision has been filed.
Ethan is now enrolled in another school district.
