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Decision No. 15,849

Appeal of F.M., on behalf of his son S.M., from action of the Board of Education of the Three Village Central School District regarding student discipline.

Decision No. 15,849

(November 13, 2008)

The Law Offices of John L. Juliano, P.C., attorneys for petitioner, Jonathan C. Juliano, Esq., of counsel

Lamb & Barnosky, LLP, attorneys for respondent, Eugene R. Barnosky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Three Village Central School District (“respondent”) to suspend his son, S.M., through the end of the 2008-2009 school year.  The appeal must be sustained in part.

On the morning of Wednesday, October 24, 2007, the dean of respondent’s Ward Melville High School telephoned petitioner to notify him that S.M., then a 17-year-old junior, had been arrested and advised him to report to the police station.  The dean read petitioner a statement relating to allegations that S.M. had forced a 15-year-old female student to perform a sexual act upon him.

The next morning, petitioner contacted the high school principal, informed him that the police had not charged S.M., and requested a meeting.  According to petitioner, the principal would not answer his questions or meet with him, directed him to contact the superintendent’s office, and inquired whether petitioner had read the charges against S.M.  Petitioner replied that he had not received any correspondence from the district.  Upon telephoning the superintendent’s office, petitioner learned from the superintendent’s secretary that a custodian had delivered a notice from the principal regarding S.M.’s suspension to an outdated address.

The notice, dated October 24, 2007 and also signed by the dean, proposed to suspend S.M. from October 24 through October 30, 2007 for an unspecified Code of Conduct (“code”) Violation.  The event summary of the offense stated that S.M. asked a 15-year-old female student to enter an unoccupied room with him, and upon entering, began asking her sexual questions about his anatomy.  He then asked her to perform oral sex.  She refused several times, attempted to leave the classroom, he blocked the door, after which she performed the oral sex.  The summary concluded, “Upon further investigation, the female student felt forced to provide the act.”  The date of the incident was not contained in the letter.  Although the exact date of receipt is unclear, the record indicates that petitioner did not receive the notice until after he received a letter from the superintendent on the afternoon of October 25, 2007.

That letter charged S.M. with nine counts of “endanger[ing] the health, safety, morals and welfare of himself or others and/or engage[ing] in conduct that was violent in violation of the District Code of Conduct, when on October 23, 2007, while at or on the grounds of Ward Melville High School,” he sexually harassed, propositioned and/or forced a 15-year-old female student to engage in oral sex with him.  The letter also notified petitioner of a superintendent’s hearing scheduled for October 30, 2007.

On October 26, 2007, petitioner, S.M. and his tutor met with the assistant superintendent (who was in charge while the superintendent was ill).  The assistant superintendent did not permit the tutor to remain, and instead of answering petitioner’s questions, she began questioning S.M.  When petitioner stated that S.M. was represented by counsel, the questioning ceased, but petitioner declined to sign the assistant superintendent’s notes of the meeting.

At the commencement of the superintendent’s hearing on October 30, 2007, petitioner’s then-counsel was informed that the district needed to amend the charges to reflect that the incident in question occurred on Monday, October 22, 2007, rather than on Tuesday, October 23, 2007, as stated in the superintendent’s letter.  Since petitioner had brought witnesses pertaining to October 23, 2007, the hearing was adjourned.  S.M., however, remained out of school.  By letter dated October 31, 2007, the superintendent issued a Notice of Amended Charges with the identical nine charges, albeit with the alleged conduct occurring on October 22, 2007.

A superintendent’s hearing was held over the course of five days over a period of five months:  November 20, November 30 and December 10, 2007; and January 4 and March 18, 2008.  The superintendent’s secretary, a student (R.A.), the 15-year-old female student and the assistant principal testified for respondent.  The dean, a school social worker, three students, petitioner, and S.M. testified on his behalf.

On January 4, 2008, the hearing officer rendered his decision on the record in which he found S.M. guilty of six of the nine charges against him.  On March 18, 2008, the hearing officer conducted the penalty phase of the hearing.  On March 19, 2007, the hearing officer issued his written decision and recommended that S.M. be suspended for the remainder of the 2007-2008 school year and for the entire 2008-2009 school year through June 30, 2009, with home instruction during the suspension as required by law.  On March 26, 2008, the superintendent accepted the hearing officer’s recommendation.  By letter dated April 1, 2008, petitioner appealed the superintendent’s determination to respondent.  By letter dated May 29, 2008, respondent upheld the superintendent’s determination.  This appeal ensued.

Petitioner asserts that S.M.’s initial suspension violated the Education Law and Commissioner’s regulations in several respects.  Petitioner further contends that respondent failed to meet its burden of proof that S.M. participated in the conduct that led to his long-term suspension.  Petitioner also contends in his memorandum of law that respondent engaged in selective enforcement of the code because it never charged the female student with any code violations.  Petitioner asserts, therefore, that respondent violated S.M.’s constitutional rights of due process and equality.  Petitioner requests that the initial five-day suspension be annulled and expunged, that the long-term suspension also be annulled and expunged, or alternatively, that the duration of the suspension be found excessive and reduced.

Respondent asserts that petitioner failed to exhaust his administrative remedies regarding the five-day suspension.  With regard to the long-term suspension, respondent contends that the hearing officer’s decision was supported by competent and substantial evidence and the penalty is proportionate to the offense.

Initially, I decline to dismiss petitioner’s claims concerning the short-term suspension for failure to exhaust administrative remedies.  Students who are suspended from school for five days or less may appeal their suspensions directly to the Commissioner unless a school district has adopted a policy requiring students to appeal short-term suspensions to the board of education before appealing to the Commissioner (Appeal of S.C., 44 Ed Dept Rep 164, Decision No. 15,134; Appeal of Amara S., 39 id. 90, Decision No. 14,182).  While respondent’s code of conduct requires an appeal to the board, the principal’s October 24, 2007 suspension notice contains no notice of such requirement.  Instead, it merely states: “Kindly refer to the [code] with regard to student rights and responsibilities concerning suspensions.”  I find that this oblique reference to the code in the suspension notice is insufficient to provide notice of a restrictive policy of administrative exhaustion, especially where the section of the code referenced, rights and responsibilities, is in  a section completely separate and apart from the section concerning student discipline and suspensions.  Accordingly, I will not dismiss this portion of the appeal for failure to exhaust.

In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of R.F., 43 Ed Dept Rep 206, Decision No. 14,972).  The notice and opportunity for an informal conference must take place prior to the 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 notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of R.M. and L.M., 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).

The written notice of a short-term suspension 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  (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

In this case, the district failed to comply with the Education Law and Commissioner’s regulations in several respects.  The principal failed to inform petitioner of S.M.’s charged misconduct prior to the suspension.  Although the record contains a notice from the principal to petitioner generated on Wednesday, October 24, 2007 proposing to suspend S.M. for five days from October 24 through 30, 2007, the record is unclear about how and when petitioner received that notice.  Respondent concedes, however, that the notice was initially delivered to an invalid address, and that petitioner did not receive a copy of it prior to S.M.’s suspension.[1]  Moreover, petitioner was denied the opportunity to meet with the principal or any complaining witnesses prior to the suspension.  Accordingly, S.M.’s suspension from October 24 through October 30, 2007 must be annulled and expunged from his record (Appeal of a Student Suspected of Having a Disability, 45 Ed Dept Rep483, Decision No. 15,388;Appeal of a Student With a Disability, 44 id. 136, Decision No. 15,124).

As to the long-term suspension, 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).

The circumstances of the incident, its reporting, and the confusion about the date of its occurrence as reflected in the different notice letters, evolved over the first three days of the hearing.  The dean testified that the female student’s mother, who happens to be a math teacher at the school, informed him on October 24, 2007 that her daughter was forced to perform a sex act on S.M. during fifth period in the jazz room.  Upon learning this, the crisis team was alerted, the police were contacted, S.M. was arrested, and petitioner was contacted.  At some point after October 24, 2007, the dean spoke to the female student, who identified through a photo array the only witness, a male student (R.A.).  R.A. testified that he was working at the piano in the jazz room during fifth period on October 22, 2007 when S.M. twice asked him to leave the room so that he and a female student, standing in the doorway, could use it.  R.A. identified the female student but testified that he left and did not see anything happen in the room.

The female student testified that after R.A. left, she went into the jazz room voluntarily, kept saying no when asked if she would perform a sex act, but then did so without coercion.  She specifically testified that S.M. did not use physical force, she did not scream, she could have left the room at any time and was not forced to stay in the room.  Testimony was elicited that she had not informed her mother of the incident.

S.M. denied that the incident occurred at all and testified that he was in art class during the time in question.  Three students from that art class testified:  one stated that S.M. was already in class when she arrived and was there the entire period; one stated that she saw S.M. in the art room as she waited outside at the end of the period; and the third, his girlfriend, stated that he was with her in art the entire period.  Two of the witnesses postulated a motive of jealousy for the female student’s story.

The hearing officer found the female student’s testimony descriptive in detail as to what happened and how it started.  He further found her testimony to be consistent with R.A.’s testimony, and overall, he found her testimony to be credible and convincing.  He found R.A.’s testimony credible and without ulterior motive.  He discounted the testimony of the three student witnesses for S.M., finding their testimony contrived and planned.  The hearing officer did not believe S.M.’s outright denial.

Although considerable testimony was devoted to the timeline and investigation of events leading to the information and charges contained in the principal’s and superintendent’s letters, the hearing officer concluded that the date of the incident was not in question and the issue of whether the dean had conducted a thorough investigation was not within his purview.  Although the dean was present when R.A. wrote his statement, the hearing officer found that there was no evidence that the dean directed R.A.’s statements.  Nor did the hearing officer find factual evidence of jealousy on behalf of the female student, as had been postulated as a possible motive for her accusation.

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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036; Appeal of K.M., 41 id. 318, Decision No. 14,699).  Upon review of the record, I cannot conclude that there is clear and convincing evidence that the hearing officer’s determinations of credibility are inconsistent with the facts.

Charges 1, 4, 5 and 9 alleged that S.M. propositioned a 15-year-old female student to perform oral sex, sexually harassed the student by the proposition, engaged in oral sex with the student and was present in an unauthorized area of the building without permission.  The hearing officer found S.M. guilty of all four charges based in large part on the testimony of the 15-year-old student.  I agree that the record supports these findings.[2]

I further agree with the hearing officer’s findings that the female student was not forced or prevented from leaving at any point.  Accordingly, I find that he properly dismissed charges 2, 6, and 8 alleging that S.M. had forced and/or compelled the female student to perform oral sex on him without her consent and had prevented her from leaving.

With respect to the remaining charges (3 and 7), the hearing officer found that the female student eventually said “okay” to the sexual act, and thus was not coerced.  However, he found that a 15-year-old is incapable of giving consent under the law.  The hearing officer’s finding on these charges centered on the definition of consent in the Penal Law, which was not at issue in the hearing.  Accordingly, I agree with these findings only to the extent they find there was not coercion of the student.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  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 a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).  A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances, such as where the student exhibits “an alarming disregard for the safety of others” and where it is necessary to safeguard the well-being of other students (Appeal of Y.M., 43 Ed Dept Rep 193, Decision No. 14,968; Appeal of Coleman, 41 id. 101, Decision No. 14,628; Appeal of Dale C., 40 id. 70, Decision No. 14,423).

As discussed more fully above, the record demonstrates that S.M. inappropriately engaged in oral sex with another student on school property.  Clearly, such conduct is intolerable and merits punishment.  However, the penalty assessed by respondent was a suspension for the remainder of the 2007-2008 school year and for the entire next school year through June 30, 2009, the end of S.M.’s senior year, and is thus tantamount to a permanent suspension.  While the record established that S.M. engaged in a sexual act on school grounds, there was no finding of physical force or coercion.  I also note that although S.M.’s anecdotal record reveals a number of prior behavioral referrals, they all involved relatively minor offenses resulting in detention or short in-school suspension.  Accordingly, I find that a permanent suspension is excessive.  S.M. has already been suspended for one calendar year, encompassing 10 months of school.  I find that this period of suspension should sufficiently impress upon petitioner the seriousness of his misconduct.

In view of the above disposition, I decline to address petitioner’s remaining claims.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent admit petitioner to the Three Village Central School District immediately; and

IT IS FURTHER ORDERED that respondent annul and expunge any reference to the suspension from October 24 through October 30, 2007 from petitioner’s disciplinary record and adjust such record to reflect the duration of the suspension in accordance with the terms of this decision.

END OF FILE

[1]Although the dean read some statement to petitioner over the telephone on October 24, 2007 when he informed petitioner that S.M. was arrested, respondent does not argue that this constituted notice of the suspension, nor would it be deemed so under these facts.

[2]I note that with regard to charges 1 and 4, the hearing officer stated that he found “the testimony of [R.A.] and the [female student] was credible and convincing.”  While the testimony of the female student is sufficient to sustain the charges, R.A. never testified that he heard S.M. ask the female student for sex or that he witnessed any sexual conduct.  He testified only that S.M. asked him to leave the room and he did.