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Decision No. 14,978

Appeal of S.C. from action of the Board of Education of the City School District of the City of Schenectady regarding student discipline.

 

 (November 14, 2003)

 

Shari Greenleaf, Esq., attorney for respondent

 

Petitioner appeals his suspension from school and requests, among other things, that the Board of Education of the City School District of the City of Schenectady ("respondent") be directed to expunge the suspension from his records.  The appeal must be sustained in part.

During the 2002-2003 school year, petitioner was a senior in respondent"s high school.  Petitioner claims that in the fall of 2002, he was employed by the Pop Warner football program to clean certain athletic fields at the Mont Pleasant Middle School ("middle school") in respondent"s district.  On October 24, 2002, while petitioner was allegedly at the middle school to clean the fields, he encountered two brothers, M.F. and C.F., with whom he was acquainted.  Petitioner admits engaging in horseplay with M.F., first in the hallway and then outside the building.  Shortly thereafter, administrators encountered M.F. in the attendance office crying and complaining that he couldn"t feel his chest, which prompted them to summon an ambulance.  When questioned by school officials, petitioner denied injuring the child, and claimed that he had "rescued" him from two other boys who had been beating him.  Although petitioner was permitted to leave the middle school after speaking to police, the following day he was summoned to the high school vice principal"s office.  After giving the vice principal a written statement in the presence of a police officer, petitioner was given written notice of a five-day suspension commencing October 28, 2002.  The notice also advised that a parental conference was scheduled for November 2, 2002.

On October 29, 2002, petitioner"s father attempted to meet with respondent"s high school principal, but was referred to the vice principal, who provided him with a short typewritten statement from an unnamed eyewitness.  On Friday, November 1, 2002, petitioner"s parents discovered a letter near their front door advising them of a November 5, 2002 hearing on charges that petitioner was at the middle school without permission and had put a student in a headlock and pushed the pressure points on his neck.

On Saturday, November 2, 2002, petitioner"s parents went to the high school to attend the conference referenced in the October 25, 2002 suspension notice, but found the building locked.

After a number of adjournments, a superintendent"s hearing was held on November 25, 2002.  The district introduced testimony from three district administrators.  The first testified that she witnessed petitioner and M.F. rough-housing in the hallway, and that after she interceded the two left the building.  The remainder of the district"s testimony came from an assistant principal and assistant vice principal at the middle school.  The assistant vice principal testified that upon being summoned to the attendance office, she found M.F. crying and rolling around on the floor in pain, complaining that he couldn"t feel his chest.  She also stated that M.F. reported that petitioner had grabbed him and hit him in his pressure points.  The record establishes that this assault took place outside the middle school.

The assistant principal testified that he, too, was present in the attendance office with M.F. and the assistant vice principal.  He further testified that petitioner denied injuring M.F. and led him to two other students who he claimed were responsible for M.F."s injuries.  Although the two were questioned by administrators, they were permitted to leave after they denied hurting M.F. and asserted that petitioner had done so.  Petitioner testified and admitted roughhousing with M.F., but denied pressing the pressure points on his neck and claimed that M.F. had been assaulted by two other students.

Immediately following the hearing testimony, the hearing officer found petitioner guilty of the charges.  She determined that the administrators" testimony that M.F. claimed that petitioner had pressed the pressure points on his neck was entitled to the "heaviest weight."  The hearing officer also reasoned that although petitioner may have initially been on the middle school property legitimately, he remained on the property without authorization and engaged in inappropriate behavior.  The hearing officer recommended a ten-week suspension commencing December 3, 2002.  Respondent"s superintendent subsequently adopted the hearing officer"s findings of guilt and penalty recommendation.

Petitioner appealed the superintendent"s determination to respondent and by letter dated January 10, 2003, the district clerk notified petitioner"s father that respondent had upheld the superintendent"s determination.  This appeal ensued.  Petitioner"s request for interim relief was denied on February 26, 2003.

Petitioner, who turned 18 on September 15, 2002, alleges that the short-term suspension was imposed in violation of his due process rights under Education Law "3214(3)(b)(1).  He also claims, among other things, that respondent failed to respond to his discovery demands.  He further alleges that the finding of guilt was improperly based on hearsay testimony of school administrators, that the record did not support the finding of guilt on the trespass charge, and that the punishment imposed was excessive.  Respondent denies any wrongdoing and alleges that the petition does not contain a clear and concise statement of petitioner"s claims.

Preliminarily, I note that because petitioner has served the suspension and graduated from high school, the appeal is moot except to the extent that petitioner seeks expungement of his records.

Education Law "3214(3)(b)(1) provides:

The board of education, board of trustees, or sole trustee, superintendent of schools, district superintendent of schools and the principal of the school where the pupil attends shall have the power to suspend a pupil for a period not to exceed five school days.  In the case of such a suspension, the suspending authority shall provide the pupil with notice of the charged misconduct.  If the pupil denies the misconduct, the suspending authority shall provide an explanation of the basis for the suspension.  The pupil and the person in parental relation to the pupil shall, on request, be given an opportunity for an informal conference with the principal at which the pupil and/or person in parental relation shall be authorized to present the pupil"s version of the event and to ask questions of the complaining witnesses.  The aforesaid notice and opportunity for an informal conference shall take place prior to suspension of the pupil unless the pupil"s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the pupil"s notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable.

Section 100.2(l)(4) of the Commissioner"s regulations provides:

Parental notice concerning student suspensions.  When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be suspended from school.  Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension at the last known address or addresses of the parents or persons in parental relation.  Where possible, notification shall also be provided by telephone if the school has been provided with a telephone number(s) for the purpose of contacting parents or persons in parental relation.  Such notice shall provide a description of the incident(s) for which suspension is proposed and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b).  Such notice and informal conference shall be in the dominant language or mode of communication used by the parents or persons in parental relation to the pupil.  Such notice and opportunity for an informal conference shall take place prior to the suspension of the student unless the student"s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable.  (Emphasis added)

Respondent did not comply with these statutory and regulatory requirements.  There is no evidence that respondent attempted through any means to immediately notify petitioner"s parents of the short-term suspension and their right to meet informally with the principal.  Further, the fact that the suspension notice given to petitioner advised him to present the notice to his parent or guardian "as soon as possible" does not relieve respondent of its obligation.  Further, because respondent does not allege that the student"s presence in school posed a continuing danger or threat, the principal was obligated to conduct an informal conference before suspending the student (Education Law "3214 [3][b][1] and 8 NYCRR "100.2[1][4]).  Because respondent did not comply with these requirements, the five-day suspension must be annulled and expunged from petitioner"s record.

Turning to petitioner"s long-term suspension, I find no merit to his claim that respondent denied him due process by failing to respond to his discovery demands.  Petitioner cites no statutory authority for such discovery, and indeed there is none (Education Law "3214[3]; Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723; Appeal of C.Q. and J.Q., 41 id. 294, Decision No. 14,691).

Education Law "3214(3)(a) authorizes a school district to suspend a "pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others."  The decision to suspend a student from school 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 Educ., 91 NY2d 133, 140-41; Bd. of Educ. of City School Dist. of City of New York v. Mills, 293 AD2d 37; Appeal of B.C. and A.C., 42 Ed Dept Rep    , Decision No. 14,891; Appeal of a Student Suspected of Having a Disability, 41 id. 341, Decision No. 14,707).  A hearing officer may draw a reasonable inference if the record supports the inference (Appeal of B.C. and A.C., supra; Appeal of J.C. and P.C., supra).

Based on the record before me I find no basis to disturb respondent"s determination.  The record establishes that M.F. was crying and physically distressed immediately after his encounter with petitioner and told administrators that petitioner had caused his injuries.  Although petitioner denied pressing M.F."s pressure points, the hearing officer chose to credit the testimony of district administrators over that of petitioner.  It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts on the record (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 341, Decision No. 14,707; Appeal of Oliver, 39 id. 817, Decision No. 14,392; Appeal of Bowen, 35 id. 136, Decision No. 13,491).  To the extent that the testimony constituted hearsay evidence, it is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (Appeal of G.M., 41 Ed Dept Rep 479, Decision No. 14,750, Mendez, et al. v. Mills, Sup. Ct., Alb. Co., Special Term, Cannizzaro, J.; Judgment granted dismissing petition to review, June 30, 2003; n.o.r.; Appeal of a Student Suspected of Having a Disability, 39 id. 476, Decision No. 14,287; Appeal of Hamet, 36 id. 174, Decision No. 13,692).

I also find sufficient evidence in the record to support the hearing officer"s finding that petitioner had trespassed on school property.  As the hearing officer noted, although petitioner may have initially been on the middle school grounds legitimately, there is no evidence that petitioner had permission to remain on the property and engage in inappropriate conduct with middle school students.

In light of this disposition, I need not address the parties" remaining contentions.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent remove any reference to petitioner"s short-term suspension from his records.

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