Appeal of J.A., on behalf of his son T.A., from action of the Board of Education of the North Colonie Central School District regarding student discipline.

Decision No. 15,810

(August 6, 2008)

Mann Law Firm, P.C., attorneys for petitioner, Matthew J. Mann, Esq., of counsel

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the suspension of his son, T.A., by the Board of Education of the North Colonie Central School District (“respondent”).  The appeal must be sustained in part.

T.A. was a ninth grade student at respondent’s Shaker High School (“Shaker” or “school”) during the 2006-2007 school year.  On March 6, 2007, an administrative dean at Shaker was advised that a group of students, including T.A., might have been smoking marijuana at the school.  Based on this information, T.A. was brought to the administrative dean’s office for questioning and was ultimately issued a five-day suspension by Shaker’s principal for using, possessing and distributing marijuana.

A hearing was held on March 13, 2007 to consider whether additional discipline should be imposed against T.A.  At this hearing, the administrative dean testified that while T.A. at first denied using or possessing marijuana, his answers to questions were “very suspicious” and “unclear.”  In addition, the administrative dean stated that upon asking T.A. to remove his hands from his pockets, he observed a “brown material” on his hands.  The administrative dean also testified that he asked T.A. if he could smell his hand, and upon doing so smelled what he believed to be marijuana smoke.  Eventually, T.A. admitted to the dean that he possessed and used marijuana with two other unidentified individuals.  In addition, T.A. produced two bags of a plant material which he identified as being marijuana, along with a lighter and a pipe.  Moreover, a hall principal at Shaker testified that when he questioned T.A. about the incident, T.A. admitted to having smoked marijuana with two other individuals, that the two bags of plant material that he gave to Shaker’s administrative dean were his, and that he had “provided” the marijuana.

Based on the testimony adduced at the hearing, respondent’s superintendent found T.A. guilty of using, possessing and distributing marijuana and imposed a suspension through the end of the 2006-2007 school year.  In addition, T.A. was placed on probation for a period of one year following his return to school.  By letter dated March 23, 2007, petitioner appealed the determination of T.A.’s guilt to respondent which, by letter dated March 30, 2007, “decided not to hear [his] appeal.”  This appeal ensued.

Petitioner does not dispute that T.A. told school officials that he possessed and used marijuana.  Instead, petitioner argues that Shaker’s officials (and even his son) were not sufficiently qualified to identify the substance as marijuana.  In addition, petitioner contends that, since the plant material and other items produced by his son were not admitted into evidence at the March 13, 2007 hearing, and that since no chemical test was performed on the plant material, there was no competent and substantial evidence from which to conclude that his son possessed and used marijuana.  Petitioner further argues that even if the evidence adduced at the March 13, 2007 hearing was sufficient to establish that his son possessed and used marijuana, this evidence should have been precluded as improperly obtained by (or flowing from) an unconstitutional “search” (i.e. the administrative dean’s “sniff” of his son’s hand).  Petitioner also challenges the charge of distribution of marijuana by alleging that respondent failed to show that his son distributed anything, let alone marijuana.

Respondent does not dispute that the plant material produced by petitioner’s son was not chemically tested or offered into evidence at the hearing.  Respondent, however, argues that between the information reported to Shaker’s administrative dean, his observation of the “brown material” on T.A.’s hand, his belief that this material smelled like marijuana, and T.A.’s subsequent admissions, there was enough evidence to support the finding that T.A. had used, possessed and distributed marijuana.

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).  Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (seeBd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of S.C., 43 Ed Dept Rep 222, Decision No. 14,978).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (seee.g.Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960; Appeal of P.K., 41 id. 421, Decision No. 14,733).  Here, T.A. admitted to school officials to having possessed and used marijuana at school.  Under these circumstances, I find there is competent and substantial evidence to support the finding that T.A. both possessed and used marijuana at school.

Further, petitioner argues that the administrative dean’s “sniff” of his son’s hand was an unconstitutional “search.”  An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law (Appeal of Murray, 43 Ed Dept Rep 400, Decision No. 15,031; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804; Appeal of Finkel, 41 id. 74, Decision No. 14,619).  Rather, a novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeals of American Quality Beverages, LLC, et al., 42 Ed Dept Rep 144, Decision No. 14,804).  Even if the administrative dean’s “sniff” were to be considered a “search” for constitutional purposes, it appears from the record that T.A. consented to it.

I agree with petitioner, however, that the record in this matter does not support the finding that T.A. distributed marijuana.  Though the school’s administrative dean testified that T.A. indicated that he had “provided” the marijuana, it is not clear from the record to whom he had provided it (i.e. to the school administrators questioning him, or to other students).  Therefore, respondent must expunge from T.A.’s record any reference to guilt for distributing marijuana.

Finally, petitioner argues that respondent’s superintendent, by the nature of her position, was not a neutral fact finder, was biased against T.A. and should have recused herself from the March 13, 2007 hearing.  A superintendent, however, is authorized by Education Law §3214(3)(c) to personally hear and determine disciplinary proceedings.  The nature of the superintendent’s position alone, therefore, does not provide a basis to disqualify her as a fact-finder.  Nor am I able to find on the record before me that respondent’s superintendent, despite giving T.A. a brief lecture after being found guilty, acted improperly or was otherwise biased against T.A.

Finally, I must comment on an issue not raised or briefed by the parties, but which I find troubling -- namely respondent’s determination “not to hear” petitioner’s appeal, but simply to let the superintendent’s decision stand without further review.  Education Law §3214(3)(c) provides, among other things, that in student discipline matters “[a]n appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it” (Education Law §3214[3][c]).  Whether or not to hear an appeal from the decision of a superintendent is not discretionary.  I therefore remind respondent of its obligation to comply with Education Law §3214.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from T.A.’s record the finding of guilt for the distribution of marijuana in connection with this incident.

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