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August 3, 1984


The opinion of the court was delivered by: OWEN


OWEN, District Judge

 This is a civil rights action by Otto Pollnow and his parents against various officers of the Millbrook, New York school system including the Superintendent and the Board of Education. It is before me on cross-motions for summary judgment.

 On April 22, 1981, during school vacation, Otto Pollnow, a sixteen year old student and a member of the football team at Millbrook High School, was arrested and charged with seriously assaulting and attempting to stab one Adeline Wormell, the mother of one of his high school friends. The assault occurred at Mrs. Wormell's home and left bruises on her body and arms and a cut on her nose. On April 27, upon the resumption of school, as Otto stepped off the school bus he was met by John Glennon, the school superintendent, and Raymond White, administrative assistant to Millbrook High's principal. Otto went with Glennon and White to Glennon's office where they questioned him about the alleged assault. According to Glennon's later testimony,

 I said to Otto I understand that you were in some trouble last Wednesday. Otto said, "Yes." I said, "What happened?" Otto said that he had gone to a pot party at the Tribute Garden. He said he was smoking marijuana and he did not know it but someone laced his marijuana with Angel Dust. He said that he went over to the Wormell's home and then he went crazy. I said, "Was anyone hurt?" He said, "Yes, Mrs. Wormell." He said, "I hurt her -- I hit her and hurt her."

 Glennon thereupon suspended Otto from school for five days under Education Law § 3214.

 The next day, Glennon informed Otto's parents by letter that he had scheduled for May 1 a disciplinary hearing pursuant to New York State Education Law § 3214 to evaluate "allegations of conduct that endanger the health, safety and welfare of students." Otto and his parents came to the hearing (hereafter sometimes referred to as "the first hearing") but protested to the hearing officer that the notice of hearing did not specify the charges against Otto. *fn1" They also stated that they would not participate in any hearing until the criminal charges then pending against Otto were resolved. Notwithstanding this protest, the hearing was held and the hearing officer recommended that Otto be suspended indefinitely, which recommendation Glennon adopted. *fn2"

 Apparently concerned with the Pollnows' claim of failure to give formal notice of the charges, Glennon set up a new hearing (hereafter sometimes called "the second hearing"), this time specifying in the notice that the hearing would investigate the assault on Mrs. Wormell. In the interim, however, the Pollnows appealed from the first hearing to the New York State Commissioner of Education requesting 1) a stay of further proceedings until the pending crimiinal charges were resolved, and 2) Otto's immediate reinstatement to his classes.

 Having not received a response from the Commissioner by the adjourned date of the second hearing, May 26, the Pollnows and their attorney attended the hearing -- held before a different hearing officer -- reiterated their protest that Otto's participation in any hearing before his criminal trial was concluded would prejudice his right against self-incrimination, and departed. Once again, despite plaintiffs' refusal to participate, the hearing proceeded to a conclusion. This time additional details of the assault, including photographs of Mrs. Wormell's numerous and serious injuries, were put in evidence. On the evidence the hearing officer recommended that Otto be suspended for the balance of the 1980-1 school year and the first semester of 1981-2. Glennon adopted the recommendation and, on June 8, notified the Pollnows accordingly.

 Following all of this, on June 15, 1981, the Commissioner of Education issued an "Interim Order" on the Pollnow's appeal from the first hearing. That opinion, in relevant part, reads as follows:

 Petitioners appeal from the April 27, 1981 suspension of their son from attendance at school for allegedly assaulting an individual in her home. They request an immediate order permitting the student to continue to attend classes in the Millbrook Central School District pending the outcome of the disciplinary hearing until such time as criminal proceedings regarding the alleged assault are disposed of . . . [A]pparently recognizing that the [April 27th] hearing may have been procedurally defective respondent has given notice to petitioners that a new disciplinary hearing will now be held on charges based on the alleged assault.

 * * *

 Upon a review of the papers before me, it does not appear that this student's presence in respondent's classrooms will pose a hazard to any student or facilty member, or any risk of disruption to the learning process. Consequently, the student must be allowed to attend his regular classes pending respondent's determination following a hearing.

 As I have held in the past, in order to preserve his right against self-incrimination, a student may request an adjournment of a disciplinary hearing pending the disposition of criminal charges against him. (Matter of Wilkins, 19 Ed. Dept. Rep. 190; see, also, Matter of Jackson, 19 Ed. Dept. Rep. 470.) Based upon my review of the facts of this case and in the interests of justice, petitioners' request for such an adjournment should be ...

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