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Decision No. 14,516

Appeal of B.W., on behalf of D.W., from action of the Board of Education of the Victor Central School District regarding student discipline.

Decision No. 14,516

(December 21, 2000)

Harris Beach & Wilcox, attorneys for respondent, Edward A. Trevvett, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Victor Central School District ("respondent") regarding the suspension of her son, D. W. The appeal must be sustained in part.

On January 21, 2000, D. W., a 12th grade student and captain of the high school varsity wrestling team, was involved in a series of incidents that occurred in the school gym immediately prior to wrestling practice. D.W. admits that he and A.S. wrestled another student/wrestler, I.S., to the mats on the floor in the wrestling room. While they were holding I.S. down, yet another student/wrestler approached, pulled down his own shorts, exposing his buttocks and genitals, and sat on I.S.’s face. Other student/wrestlers were subjected to the same treatment that afternoon, with D.W. accused of participating in one of these episodes involving P.W.

On Monday morning, January 24, 2000, the district's athletic director and assistant high school principal interviewed D.W. Later that morning D.W. met with the high school principal, Christine Steinberg. Mr. and Mrs. G., parents of another alleged victim and also the parents of D.W.’s girlfriend, were present at that meeting. Ms. Steinberg suspended D.W. for five days pending a superintendent’s hearing. D.W. also met with the district's athletic review board on January 27, 2000 and was suspended from wrestling for the remainder of the school year for violating the district's athletic code of conduct ("code"). He unsuccessfully appealed that suspension to the assistant superintendent pursuant to the code. The superintendent’s disciplinary hearing was originally scheduled for January 31, 2000, but was postponed until February 3, 2000 at the request of petitioner’s attorney. An impartial hearing officer found D.W. guilty of the charges and recommended his suspension from school and all extracurricular activities for an additional 60 days. By letter dated February 8, 2000, respondent's superintendent accepted that recommendation and imposed the suspension. Petitioner appealed that decision to respondent who upheld the suspension by letter dated March 17, 2000. This appeal ensued.

Petitioner contends that D.W. was denied due process because respondent refused to identify his accusers, that he was denied his right to an attorney at the initial athletic hearing and because respondent refused to reopen the hearing to hear additional witnesses. Petitioner also asserts that Principal Steinberg refused to provide D.W. an informal conference as required by Education Law. Petitioner argues that the suspension was arbitrary and capricious and asks that D.W.’s record be expunged.

Respondent contends that it provided D.W. with his full due process rights as required by law and that the evidence in the record supports its decision. Respondent asserts that petitioner failed to exhaust administrative remedies regarding the athletic suspension. Respondent objects to additional allegations and exhibits included in petitioner’s reply.

Initially, I will address the issue of petitioner’s reply. In her reply, petitioner sets forth for the first time additional facts and allegations. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.3 and "275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions or exhibits that should have been in the petition (Appeal of Boni, 40 Ed Dept Rep ___, Decision No. 14,483; Appeal of McCart, et al., 39 id. 534; Decision No. 14,302). Therefore, while I have reviewed petitioner's reply, I have not considered those portions that contain new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent claims that petitioner failed to exhaust administrative remedies by failing to appeal the athletic suspension to the superintendent and respondent, pursuant to the district's code. However, at the suspension hearing, Principal Steinberg acknowledged that the hearing officer's ruling would include both the academic suspension and suspension from extracurricular activities, including wrestling (transcript p. 79). The hearing officer's decision specifically stated that D.W. was suspended for 60 days from "classroom instruction and wrestling." Therefore, since petitioner appealed this decision to the superintendent and to respondent, I decline to dismiss the appeal for failure to exhaust administrative remedies.

Petitioner’s claim regarding D.W.’s initial suspension by Principal Steinberg must be sustained. Respondent contends that D.W. was not entitled to an informal conference because he was suspended pursuant to Education Law "3214(3)(c) and received a superintendent’s hearing as required by that section. However, it is undisputed that Principal Steinberg imposed an initial five-day suspension pending the superintendent’s hearing. Where a student is suspended for five days or less the parents of the student are entitled to an informal conference with the principal, with notice of such right to be included in the suspension notice (8 NYCRR 100.2[l][4]). In this case, the notice of suspension did not include that information and petitioner was denied the opportunity for an informal conference. Furthermore, Principal Steinberg interviewed D.W. in the presence of the parents of one of the alleged victims, yet refused petitioner the same opportunity. Based upon these facts, I conclude that D.W.’s initial five-day suspension was improperly imposed and this suspension should be expunged from his records.

The appeal must be denied as to the remaining 60-day suspension from school and extracurricular activities. A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Christopher and Gigi B., 39 Ed Dept Rep 642, Decision No. 14,338; Appeal of B.B., 38 id. 666, Decision No. 14,113; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899). Furthermore, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Christopher and Gigi B., supra; Appeal of B.B., supra; Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689). 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 Christopher and Gigi B., supra; Appeal of B. B., supra; Appeal of Alexander, supra).

In this case, petitioner claims that D.W.’s attorney should have been present at the athletic board hearing and that they should have had prior notice of witnesses to be called at the superintendent’s hearing. Petitioner does not provide any source of legal authority for these claims. In any event, D.W.’s attorney attended the superintendent’s hearing and the notice of the superintendent’s hearing contained a list of possible witnesses.

Petitioner also contends that the hearing should have been reopened when she wanted to present new witness testimony. Respondent contends that the witness in question had been interviewed by the assistant high school principal prior to the hearing and that this witness’s "new" testimony was much more detailed than the original interview, thus casting suspicion on its veracity. The superintendent noted that the suspension of several star wrestlers had become a very divisive issue at the school, with particular pressure on the wrestlers who were either victims or witnesses to the activities on January 21. In view of this situation, the superintendent did not feel that reopening the hearing would serve any useful purpose. I do not find this decision arbitrary or capricious.

The record indicates that D.W. received a full hearing and was able to present evidence and question witnesses. D.W. admitted to participating in the episode with I.S., but denied participation in the episode with P.W., or any other episode that day. P.W. testified at the hearing that D.W. held him down while A.S. attempted to sit naked on P.W.’s head. He further testified that he had observed D.W.’s participation in the I.S. episode. The hearing officer weighed the credibility and demeanor of the witnesses and found P.W.’s testimony more credible than D.W.’s. With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of Reeves, 37 Ed Dept Rep 271, Decision No. 13,857; Appeal of Hamet, 36 id. 174, Decision No. 13,692; Appeal of McCreery 34 id. 426, Decision No. 13,369). A review of the hearing transcript reveals that the hearing officer’s findings are reasonable and constitute sufficient and competent evidence that D.W. participated in the conduct charged. I find no reason to substitute my judgment for that of the hearing officer as to the credibility of the witnesses. Consequently, there is no basis to overrule respondent’s decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s initial five-day suspension of petitioner’s son beginning January 24, 2000 be expunged from his record.

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