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Decision No. 14,723

Appeal of J.C. and P.C., on behalf of their son J.C., from action of the Board of Education of the Liverpool Central School District and John J. Cataldo, Superintendent regarding student discipline.

 

Decision No. 14,723

(May 20, 2002)

 

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for petitioners, Martin D. Auffredou, Esq., of counsel

 

O"Hara and O"Connell, attorneys for respondent, James P. Evans, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Liverpool Central School District ("respondent board") to suspend their son from March 14, 2001 to March 14, 2002. The appeal must be dismissed.

Petitioners" son, J.C., was enrolled in the tenth grade in the Liverpool High School during the 2000-2001 school year. On March 14, 2001, J.C. was suspended from school for insubordination based on allegations that he failed to comply with the terms and conditions of his computer user and internet agreement. This disciplinary action was prompted by the district"s discovery that, among other things, J.C. had used a school-issued laptop computer to attempt to gain unauthorized access to a number of servers around the country, including the district"s server.

On March 29, 2001, a superintendent"s hearing was held before a district hearing officer. On March 30, 2001, the hearing officer issued his findings of fact and penalty recommendation. The hearing officer credited testimony that J.C. had used his laptop computer in an effort to access the school district"s server, which contained "sensitive and controlled files, including other students" information, teacher passwords and other sensitive data," and that he also attempted to access other servers to implant software that would cause those servers to "crash." The hearing officer recommended that J.C. be suspended for one year and barred from using any school district computer. By letter dated March 30, 2001, respondent superintendent informed petitioners that he was adopting both the hearing officer"s findings of fact and penalty recommendation. Petitioners appealed the superintendent"s determination to respondent board. By letter dated July 25, 2001, respondent board"s counsel informed petitioners" counsel that respondent board had affirmed the superintendent"s determination. This appeal ensued. Petitioners" request for interim relief was denied on September 10, 2001.

Petitioners contend that the penalty imposed was excessive and that the hearing officer"s findings that J.C."s goal was "to cause property damage" and to "gain access to the School District"s server to gain confidential information and engage in...wrongful conduct" are not supported by the hearing record. They also allege that J.C."s due process rights were violated because respondents failed to provide J.C. with adequate notice of the charges or to disclose written statements and other documentary evidence it intended to use at the hearing. For relief, petitioners request that J.C. be permitted to return to school in September 2001, and that I reverse respondent board"s determination and order expungement of J.C."s records.

Respondents allege that petitioners have failed to set forth a clear and concise statement of their claims, that the appeal is untimely, that J.C. was provided with sufficient due process, and that the penalty imposed was appropriate. In reply, petitioners allege that although respondent board apparently affirmed the superintendent"s decision on June 29, 2001, their counsel was not informed of the decision until July 30, 2001. They contend, therefore, that their appeal was timely commenced on August 23, 2001.

Before reaching the merits, I will address several procedural issues. Respondents contend that petitioners have failed to state a clear and concise statement of their claims in violation of "275.10 of the Commissioner"s regulations. Upon review, I find that petitioners sufficiently state a claim and that respondents were adequately apprised of the claims raised by petitioners (See, Appeal of Vigliotta, 40 Ed Dept Rep , Decision No. 14,493). Accordingly, I decline to dismiss the petition on this ground.

An appeal to the Commissioner must be initiated within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Pierre, 40 Ed Dept Rep ___, Decision No. 14,551). It appears that petitioners were not notified of respondent board"s decision to uphold the superintendent"s determination until July 30, 2001. Accordingly, I find that the appeal, commenced on August 23, 2001, is timely.

However, the appeal must be dismissed on the merits. The Court of Appeals has stated that the charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing." (Bd. of Educ. of Monticello CSD v. Commissioner of Education, et al., 91 NY2d 133). "As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served." (Id.) Significantly, the Court of Appeals recognized in Monticello that although student disciplinary hearings are serious and adversarial in nature, students are not entitled to the protections of a criminal trial (Bd. of Educ. of Monticello CSD v. Commissioner of Education, et al., supra).

The notice of discipline informed petitioners that J.C. was charged with insubordination based on his "failure to comply with terms and conditions of his computer user and internet agreement...." Although the notice is somewhat lacking in specificity, the record reflects that J.C. and his parents met with the high school principal on March 16, 2001 and discussed the alleged misconduct upon which the disciplinary action was based. Further, although petitioners" counsel initially objected at the hearing to the lack of specificity in the notice of discipline, he did not refute the assertions of the district"s counsel that additional information about the charges had been provided to J.C. and his mother during a discussion with the principal. Additionally, there is no evidence in the record that petitioners" counsel was surprised by the testimony or was unable to adequately prepare a defense based on the insufficiency of the notice. Under such circumstances, I find that petitioners received sufficient notice of the charges (see, Appeal of Mace, 40 Ed Dept Rep 110, Decision No. 14,443).

Nor do I find any merit to petitioners" contention that their son was denied due process by respondents" failure to disclose in advance of the hearing documentary evidence detailing, among other things, J.C."s internet activity. Petitioners cite no statutory authority for such discovery, and indeed there is none (Education Law "3214[3]; Appeal of C.Q., et al., 41 Ed Dept Rep , Decision No. 14,691). In the absence of any express statutory mandate, due process does not impose an affirmative obligation on respondent board to provide the student with a copy of the evidence it intends to rely on in advance of a disciplinary hearing conducted pursuant to Education Law "3214(3) (see, Appeal of C.Q., et al., supra; Application to reopen the appeal of R.S., 38 Ed Dept Rep 419, Decision No. 14,065; Appeal of Spink, 25 id. 129, Decision No. 11,520). Moreover, although petitioners allege that respondents" failure to disclose this information prevented their attorney from adequately cross-examining respondent board"s witnesses because of the technical nature of the evidence, the record reflects that petitioners did not request a hearing adjournment to allow them the opportunity to analyze the documents. Under these circumstances, I do not find any basis for concluding that petitioners have been denied due process.

Nor do I find that petitioners were denied due process by respondents" alleged failure to provide them with their son"s anecdotal record in advance of the hearing. It is well settled that a student"s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep , Decision No. 14,678; Appeal of Ezard, 29 id. 135, Decision No. 12,245); and only if notice of its contents has been given in advance to the student (Appeal of Ezard, supra; Matter of Kulik, 21 Ed Dept Rep 567, Decision No. 10,793). The hearing record reflects that although J.C."s anecdotal record was introduced during the hearing, the hearing officer assured the parties that it would not be used to determine J.C."s guilt or innocence. Further, petitioners" counsel was given an opportunity to comment on its contents and to submit favorable evidence for consideration with J.C."s anecdotal record. Under these circumstances, I do not find any due process violation. Moreover, it appears that J.C."s anecdotal record, which apparently was not extensive, was not a significant factor considered by the hearing officer in recommending the one-year suspension.

I also find substantial evidence in the record to support both the hearing officer"s findings of fact and the penalty imposed. 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 (Bd. of Educ. of Monticello CSD v. Commissioner of Education, et al., supra; Appeal of Harlan, 40 Ed Dept Rep ___, Decision No. 14,488; Appeal of Aldith L., 39 id. 291, Decision No. 14,241). A hearing officer may draw reasonable inferences if the record supports the inference (Bd. of Educ. of Monticello CSD v. Commissioner of Education, supra; Appeal of Harlan, supra; Appeal of Aldith L., supra). In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Harlan, supra; Appeal of Aldith L., supra). 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 (Appeal of Harlan, supra; Appeal of Aldith L., supra).

The proof presented at the hearing established that J.C. used a school-issued laptop computer to engage in a pattern of inappropriate and illegal activity that warrants the imposition of a significant penalty. The record reflects that on January 30, 2001, J.C. made repeated attempts to gain unauthorized access to the district"s server, which contained teacher passwords, student passwords and students" folders. Further, after two students complained to a teacher that J.C. was attempting to flood the district"s network, respondent monitored J.C."s laptop internet activity for a 3-day period and discovered additional evidence of wrongdoing. The monitoring revealed that J.C. had attempted to access six different servers around the country using an "ADM1" user identification, which, according to the district"s network manager, is often used by hackers to gain unauthorized access to a server. The district"s network manager contacted the administrators of two of those servers, who each confirmed that J.C. was not authorized to access the server in question. Independent of that investigation, the district also learned that J.C. had gained unauthorized access to a server located in Montana owned by a Canadian corporation and had installed two programs, "papa smurf" and "egg drop," which, in combination can be used to sabotage a server by flooding it with data. The district learned of this activity after the corporation discovered the unauthorized access and traced it to an internet protocol address linked to the local BOCES, where it was then traced to J.C."s laptop.

When initially confronted with these allegations during a March 14, 2001 meeting with respondent"s high school principal, J.C. denied attempting to access any servers. However, at the hearing, J.C. admitted that he had loaded the "egg-drop" program on "a few" servers, but claimed he had been given permission to access the servers by someone "over the internet." He also admitted using his laptop computer to load the "smurf" program onto a server to slow down some of his friends" laptops in order to gain an advantage over them when playing computer games. Further, although J.C. claimed that he had tried to access the district"s server only to access his own files, his assertion was refuted by the district"s computer repair technician, who explained that J.C. was already on the district"s network, where he could have accessed his own student files, at the time he was attempting to access the district"s server. Further, in finding J.C. guilty of the charges, the hearing officer found J.C."s testimony to be "questionable, and at times, intentionally deceptive" and his demeanor "evasive."

Under these circumstances, I find that the hearing officer"s findings that J.C."s "goal [was] to cause property damage to servers around the country" and that J.C. attempted to gain access to the school district"s server "to gain confidential information and to engage in additional wrongful conduct" are reasonable inferences supported by the record. The record reflects that J.C. failed to establish any credible, innocent explanation for his actions sufficient to counter the overwhelming proof that he had attempted to gain unauthorized access to a number of different servers and on at least one occasion, had succeeded in installing the "egg-drop" and "papa smurf" programs, which can be used to overload a server with data and cause it to crash. In light of the breadth and seriousness of J.C."s conduct, I cannot conclude that a one-year suspension is inappropriate. Accordingly, I decline to substitute my judgment for that of respondents.

 

THE APPEAL IS DISMISSED.

END OF FILE