Appeal of V.D., on behalf of his daughter C.D., from action of the Board of Education of the West Seneca Central School District regarding student discipline.

Decision No. 15,800

(August 1, 2008)

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys for respondent, Brendan Kelleher, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the West Seneca Central School District (“respondent”) to permanently suspend his daughter, C.D.  The appeal must be sustained.

During the 2006-2007 school year, C.D. was a 10th grade student at respondent’s high school.  On September 19, September 22 and October 6, 2006, bomb threat notes were found in the high school.  In each instance, the high school was evacuated and appropriate law enforcement personnel were contacted.

During the building’s evacuation following the October 6, 2006, bomb threat, a student notified the assistant principal that he saw a female student wearing a black T-shirt, with no writing on the back, toss a folded piece of paper into the school’s guidance office between the third and fourth block of classes. 

Upon receiving this information from the assistant principal, the principal ordered all female students wearing black T-shirts to immediately report to the school’s auditorium so that they could be questioned.  After all of the female students wearing black T-shirts were assembled in the school’s auditorium, the principal further segregated approximately 15 female students wearing short-sleeve, black T-shirts with no writing on the back.  These 15 students were sent to a classroom, where the principal asked each of them to write a statement regarding their whereabouts from the end of the third block of classes to the beginning of the fourth block of classes.  C.D. wrote that she walked from her global studies class, which was located on the second floor to her French class on the second floor.  After the written statements were completed, the principal questioned C.D. about what she thought about the bomb threat.  C.D. responded that the bomb threats were well-planned because the notes were dropped at a confusing time, and that the threats would not stop until someone was caught.

By letter dated October 27, 2006, the superintendent notified petitioner that his daughter was being charged with dropping the October 6, 2006, bomb threat note in the guidance office, which resulted in evacuation of all students and staff from the building.  The letter also charged C.D. with failing to come forward and notify school officials as to the origin of the note.  A superintendent’s hearing was held on October 31, 2006, and the penalty phase was conducted separately on November 2, 2006.

The hearing officer recommended that C.D. be found guilty of all charges and suspended permanently, with the possibility to be readmitted by application in September 2007.  By letter dated November 7, 2006, respondent’s superintendent adopted the hearing officer’s recommendation.  Petitioner appealed and respondent affirmed the superintendent’s decision by letter dated December 22, 2006.  This appeal ensued. Petitioner’s request for interim relief was granted on January 29, 2007.[1]

Petitioner contends that respondent failed to meet its burden of proof in establishing that the conduct in question was committed by C.D.  He further alleges that his daughter’s due process rights were violated because C.D. was never given the opportunity to cross-examine the student witness and she was never notified of her right to subpoena witnesses.  Petitioner further claims that respondent failed to provide petitioner with reasonable notice of the hearing date and that the penalty is excessive.

Respondent counters that the hearing officer’s determination is supported by substantial and competent evidence.  Respondent also avers that C.D. was repeatedly reminded of her due process rights, in writing, and by the hearing officer during the course of the hearing.  Finally, respondent argues that the penalty imposed is proportionate to the offense.

Education Law §3214[3][a] authorizes a board of education 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 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 Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107).    After carefully reviewing the transcript and the record before me, I find no substantial, objective proof that C.D. was guilty of the charges.

In the hearing officer’s findings of fact, he found petitioner guilty of the charges based on two statements made regarding the October 6, 2006, bomb threat and the fact that petitioner allegedly matched the description of the person who made the bomb threat.  First, respondent relies on evidence in the record indicating that C.D. was wearing the same type of clothing as the female student who was observed dropping a note on the guidance office floor, i.e. a black T-shirt with no writing on the back.  However, the principal admits that C.D. was among 14 other female students pulled from the buses after school fitting this description.  The hearing officer further admits, in his determination, that this evidence alone is insufficient to sustain a finding of guilt.

Respondent then offers testimony from the principal who stated that, when she questioned petitioner about the bomb threat, petitioner responded that the threat was planned by a “mastermind” and that petitioner volunteered that the threat was communicated via “a note dropped in between classes.”  Respondent argues that the time of the incident had not been made public.  However, the record reveals that when the 15 female students were pulled off of the buses, they were asked to provide their whereabouts between third and fourth block, thus identifying the time of the incident.

The hearing officer’s determination stated:

[t]he evidence on the record establishes that [C.D.] was wearing the same type of clothing as the female who was observed dropping a note on to the guidance office floor.  That alone would be insufficient; however, when combined with her knowledge that the threat was a note and that it had been dropped on the Guidance office floor where it would be found is sufficient. 

Notably, there is nothing in the record to support the fact that C.D. had knowledge that the bomb threat was dropped on the guidance office floor.  In fact, this statement cannot be found anywhere in the transcript. 

Based on the record before me, I do not find competent and substantial evidence to conclude that petitioner participated in the objectionable conduct. Accordingly, respondent's determination must be set aside.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent continue to admit C.D. to school in the West Seneca Central School District; and

IT IS FURTHER ORDERED that respondent remove any reference to a permanent suspension from C.D.’s disciplinary record and adjust such record in accordance with the terms of this decision.

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