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Decision No. 16,133

Appeal of L.B. and R.S., on behalf of their son L.B., from action of the Board of Education of the Harrison Central School District regarding student discipline.

Decision No. 16,133

(August 20, 2010)

Legal Services of the Hudson Valley, attorneys for petitioners, Sarah K. Laws, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Carolyn J. Przybylo, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Harrison Central School District (“respondent”) to uphold the suspension of their son, L.B.  The appeal must be dismissed.

In the 2008-2009 school year, L.B. attended sixth grade at the district’s Louis M. Klein Middle School.  On May 1, 2009, the middle school principal notified petitioners that he was suspending L.B. for five days beginning May 1 for having uttered sexually inappropriate comments to female students.[1]  Respondent’s superintendent sent a letter notifying petitioners that a hearing would be held on May 7, 2009 to consider charges against L.B.  That letter alleged L.B. “put in danger the health, safety, moral [sic] and wellbeing of himself and others when he made inappropriate comments toward another (female) student on the school bus” on or about April 30, 2009.  A hearing was held on May 7, 2009.

In a decision dated May 19, 2009, the hearing officer determined that the testimony of the four district witnesses was credible, but that L.B.’s testimony, wherein he denied making any of the statements, was not.  Accordingly, the hearing officer found L.B. guilty of the charge.  After recalling one of the assistant principals as a witness for the penalty phase, the hearing officer recommended that the superintendent suspend L.B. for the balance of the 2008-2009 school year and the entirety of the 2009-2010 school year.

On May 21, 2009, the superintendent notified petitioners that he agreed with the hearing officer’s determination and recommended penalty.  R.S. appealed the superintendent’s determination to respondent.  On August 19, 2009, the district clerk informed petitioners that respondent reviewed the entire record and the documentation submitted in support of the appeal and had upheld the superintendent’s determination.  This appeal ensued.  Petitioners’ request for interim relief was denied on October 1, 2009.

Petitioners contend that their rights to due process were denied because the superintendent’s May 4, 2009 letter failed to provide reasonable notice of the charges against L.B. by failing to identify the substance of the comments or to whom the comments were made; failed to provide reasonable notice to permit them to obtain legal representation and prepare the case; failed to inform them of their right to request an adjournment to secure legal representation; and failed to adequately inform them of the severity of the charges or possible penalty in accordance with the middle school’s Code of Conduct (“code”).  They further contend that L.B.’S rights to due process were violated because he was not given the opportunity to confront the witnesses against him because neither student testified about comments that allegedly occurred on the school bus, the assistant principals who testified had no direct knowledge of the alleged conduct on the school bus, and the hearing officer’s determination was based on hearsay.  Petitioners assert that the penalty is excessive and disproportionate to the severity of the offense, and exceeds the penalty ranges set forth in the code.  Petitioners seek L.B.’s return to school and expungement of his record, or in the alternative, a new hearing based on proper notice.

Respondent contends that the appeal must be dismissed because petitioners fail to state a claim upon which relief may be granted and the appeal improperly raises new arguments never raised with respondent on appeal.  Respondent further contends that it afforded due process to L.B. and petitioners, that the determination is based on competent and substantial evidence and that the penalty is proportionate to the severity of the offense.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  The suspension has been served and therefore the appeal is moot except to the extent petitioners seek expungement of L.B.’s records (Appeal of a Student Alleged to Have a Disability, 49 Ed Dept Rep ___, Decision No. 16,034; Appeal of M.P., 44 id. 132, Decision No. 15,123).

In the letter from petitioner R.S. requesting that respondent review the superintendent’s suspension hearing, R.S. raised only two issues on appeal: the veracity of the district’s four witnesses and the fact that she failed to grasp the seriousness of L.B.’s situation and thus did not avail herself of the opportunity to obtain representation even though she had been advised of her right to do so.  R.S. specifically stated:

I . . . do not agree with the contents and or decisions.  On the report there is information stated that came from other parties involved, which I believe not to be factual information.  I would like an opportunity to dispute this information that was given.  Also, at the time of the hearing I was informed that I could bring legal representation, however I was not informed of the seriousness of the situation.  I now feel like I need legal representation in order to appropriately advocate for my child.

Petitioners urge in their reply that this appeal letter should be interpreted “broadly.”  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  There is no legal basis for considering the appeal letter broadly; it is clear that R.S. raises only two issues in the administrative appeal to respondent, and failed to raise any arguments regarding due process, reasonable notice, the code, hearsay, or the penalty.  Because these issues were not adjudicated below, they may not be raised in an appeal before the Commissioner under Education Law §310 (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451; Appeal of D.V., 44 id. 263, Decision No. 15,168; Appeal of A.R. and S.R., 40 id. 262, Decision No. 14,477).

Regarding the veracity of the witnesses, 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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  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 a Student with a Disability, 45 Ed Dept Rep 396, Decision No. 15,364).  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 L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).

The hearing officer found the testimony of the four district witnesses credible and that of L.B. not credible, and based on that credible evidence, he found L.B. guilty of the charge against him.  My review of the record supports that determination.  The record reveals that one of the student witnesses (E.M.) testified that L.B. told her on the school bus that she had 105 dildos.  One of the assistant principals also testified that he was aware of the incident on the bus where L.B. had told a female student she had 105 dildos because she had reported it to her guidance counselor who had in turn reported it to him.  He testified that he had interviewed the student and another witness, both of whom gave him written statements, and that he had interviewed L.B.  This assistant principal testified further that the school was already in the process at that time of a Title IX investigation for sexual harassment regarding L.B.

The other assistant principal had earlier testified about her familiarity with L.B. because she had been asked to interview several students in conjunction with the Title IX investigation stemming from a previous allegation and disciplinary action against L.B.  In the course of that investigation, she testified that one female student had said that L.B. made sexual jokes on the bus, called girls bitch, slut, fat ass and whore, and was afraid of L.B.  A second female student reported that L.B. had called her a “perv,” whore and a slut.  A third female student reported that two weeks prior to the incident preceding this charge, L.B. put his cell phone on vibrate, pressed it up against her breasts and private area, laughed, told her he was going to do it over again and again and she was going to enjoy it despite the fact that she was crying and asked him to stop.  He also called her on the telephone many times and threatened to rape and kill her, and called her brother and told him he wanted to rape his sister.

L.B. testified on his on behalf.  He admitted the cell phone incident, but denied calling anyone names and the other allegations and asserted that everyone was making these things up.  Based on the record before me, I find no basis to substitute my judgment for that of the hearing officer on the credibility of the witnesses, or to overturn respondent’s determination of guilt.

The only remaining issue is petitioners’ contention that they were unaware of the seriousness of the situation and therefore did not obtain legal representation.  In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioners seek relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  The record reveals first, that R.S. admits in her appeal letter to respondent that “at the time of the hearing I was informed that I could bring legal representation.”  The record of the hearing, where petitioners had a translator, also indicates that the hearing officer informed petitioners of all their due process rights, including representation, at its commencement.  Second, the superintendent’s May 4, 2009 notice of the hearing, of which petitioners acknowledge receipt, also informed them of their right to representation.  Third, according to the disciplinary record introduced at the hearing, L.B. previously had been suspended two weeks earlier on April 17, 2009 and subjected to a superintendent’s hearing.  According to respondent, prior to that hearing, respondent’s counsel had met with petitioners to explain the severity of that incident (regarding the cell phone) and hearing process.  Accordingly, the record demonstrates that petitioners’ contention is without merit.

THE APPEAL IS DISMISSED.

END Of FILE.

[1] The comments included:  “I want to rape you. After I rape you I’m going to kill you;” You have 105 dildos;” and “Do you want some of this?” as he pointed to his groin.  The letter also stated that L.B. called female students “bitch, slut, and whore.”