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Decision No. 16,383

Appeal of G.B. and B.B., on behalf of their son B.B., from action of the Board of Education of the South Huntington Union Free School District regarding student discipline.

Decision No. 16,383

July 27, 2012

John J. McGrath, Esq., attorney for petitioners

Ingerman Smith, L.L.P., attorneys for respondent, Michael G. McAlvin, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the South Huntington Union Free School District (“respondent”) to uphold the suspension of their son, B.B.  The appeal must be sustained in part.

During the 2009-2010 school year, B.B. attended the district’s Henry L. Stimson Middle School (“school”) and was a member of the volleyball team.  On March 16, 2010, an incident occurred in the boys’ locker room after the team returned to school following an away game.  According to testimony elicited at the subsequent superintendent’s hearing, the alleged victim’s mother informed the volleyball coach that team members had humped and “tea-bagged”[1] her son, another team member.  The coach contacted the athletic director, who that evening notified the school’s administrative dean (“dean”).

The following morning, the dean notified the assistant principal and principal, who directed the dean and assistant principal to commence an investigation.  The dean and assistant principal gathered team members in a room and requested that they write statements about whether they had seen or been involved in any incident in the locker room the night before, including listing anyone who might have been involved.  Upon reviewing the statements, the dean and assistant principal determined that the statements were too general but noticed that some students referred to other events, in addition to the one the previous day, and also used the phrase “tea-bagging.”  The two administrators then asked those students to write a second, more detailed, statement specifically about the incident on March 16, 2010, and also about whether they were aware of any other incidents that had taken place during the volleyball season.  Certain individuals were named repeatedly in the second statements as being involved in similar locker room incidents.  After reviewing these statements, the dean and assistant principal determined that some students were not involved in any incidents and those students were released.  However, the dean and assistant principal asked the remaining students, including B.B., for a third statement describing their own involvement in any tea-bagging incidents during the season and/or on March 16, 2010.[2] As a result of this investigation, B.B. produced three written statements.

On the evening of March 18, 2010, the principal contacted B.B.’s mother by telephone to inform her that B.B. would be suspended from school for five days commencing March 19, 2010.  According to respondent, petitioners met with the principal and assistant principal on March 22, 2010 and received B.B.’s written statements.

By letter to petitioners dated March 19, 2010, the principal suspended B.B. for five days, from March 19 through March 25, 2010, for:  “1) Intimidation of another student(s) including Title IX violations; 2) Bullying of another student(s); 3) Endangered [sic] the safety, morals, health or welfare of another student(s); and 4) Harassment of another student(s).”  In a separate letter dated the same day, the superintendent notified petitioners of a superintendent’s hearing scheduled for March 23, 2010, to consider the same four charges listed in the principal’s letter; the only difference between the two letters was an additional phrase in the superintendent’s letter preceding the charges, that "on the 16th day of March 2010 and on a series of other dates during the 2009-2010 school year,” B.B. engaged in the conduct charged.

Petitioners requested an adjournment of the hearing to obtain counsel.  Accordingly, the hearing was delayed until March 26, 2010, after which the hearing officer found B.B. guilty of the charges and referred the matter to the superintendent for a penalty determination.  By letter dated March 30, 2010, the superintendent notified petitioners that he was suspending B.B. through April 16, 2010.[3] He also imposed an athletic suspension on B.B. for the remainder of the 2009-2010 school year and the fall semester of the 2010-2011 school year, although he offered B.B. the opportunity to participate in sports for the fall 2010-2011 season if certain conditions were met.[4] Petitioners appealed to respondent, which denied their appeal but did not require B.B. to answer the last essay question about sexual harassment.  This appeal ensued.

Petitioners contend that the five-day suspension must be expunged from B.B.’s record because the notice was untimely and improperly delivered, and notice of the charges was insufficient.  They also assert that the long-term suspension must be expunged because respondent failed to prove the charges against B.B. by competent and substantial evidence.  They contend further that the charges in the superintendent’s letter were vague and failed to notify B.B. that his conduct violated the district’s code of conduct (“code”), that the hearing officer should have recused herself because she participated in the investigation, and as the district’s Title IX officer, she failed to properly investigate the Title IX claims.  Petitioners also contend that the hearing officer improperly failed to recommend a penalty to the superintendent; that B.B. was improperly suspended for two school days from the conclusion of the hearing on March 26 to March 30 when the superintendent rendered his determination; that the penalty was excessive; that respondent failed to conduct the required annual review of its code and, therefore, any violations of the code are procedurally defective and must be dismissed; and that respondent was negligent in hiring an unlicensed coach.  Petitioners seek annulment and expungement of the academic and athletic suspensions from B.B.’s records.    

Respondent contends that the petition fails to state a claim upon which relief may be granted.  Respondent asserts that its decision to suspend B.B. was based on competent and substantial evidence, that B.B. was afforded appropriate due process, and that the penalty was not excessive.  Respondent denies that the hearing officer lacked impartiality, denies any claims of negligence and asserts that it acted properly in all respects.  It also asserts that the appeal is moot because B.B. has already served the suspensions.

I will first address a procedural issue.  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The suspensions from school and extracurricular activities have been served and, therefore, the appeal is moot, except to the extent petitioners seek expungement of B.B.’s record (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).

I turn now to the merits.  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).

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]).  Oral communication with a parent regarding a suspension is not a substitute for the required written notification (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

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 a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).

By letter dated March 19, 2010, the principal notified petitioners of B.B.’s five-day suspension.[5] The principal states in an affidavit that she telephoned B.B.’s mother on the evening of March 18 to inform her of B.B.’s suspension, which was to begin the following day.  The principal also avers that she offered petitioners the opportunity to participate in an informal conference with her to discuss the matter, but admits that she was unavailable until Monday, March 22, 2010, the second day of the suspension, because she had jury duty on Friday, March 19, 2010.  While the principal states that she offered petitioners the opportunity to meet with the assistant principal on March 19, 2010, a meeting with an assistant principal, whenever it occurs, cannot substitute for a meeting with the principal as required by the statute and regulation (Education Law §3214[3][b]; 8 NYCRR §100.2[l][4]; Appeal of V.R. and C.R., 43 Ed Dept Rep 99, Decision No. 14,934; Appeal of A.L., Jr. 42 id. 368, Decision No. 14,883).  Accordingly, because petitioners were not afforded timely written notice and an opportunity for an informal conference with the principal prior to the suspension, the short-term suspension must be expunged.

Respondent argues in its answer that B.B.’s presence in school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process such that prior notice and a conference were not required.  However, the principal’s letter did not so state and the record is devoid of any such evidence.  To the contrary, as petitioners note in their reply, B.B. remained in school all day March 17 during the investigation and all the following day on March 18.  Therefore, the suspension from March 19 through March 25, 2010 must be expunged from B.B.’s record.  Since that suspension is expunged, I need not address the sufficiency of the charges contained in the principal’s notice of the five-day suspension.

Although the initial five-day suspension must be expunged, that does not entirely resolve the matter, because a long-term suspension was subsequently imposed following a superintendent’s hearing.  Petitioners allege, among other things, that the charges in the superintendent’s March 19, 2010 letter were vague and did not refer to violations of the code, and that respondent failed to prove the charges by competent and substantial evidence.

There is no requirement that a disciplinary notice cite a specific provision of respondent’s code (Appeal of L.L., 45 Ed Dept Rep 217, Decision No. 15,306).  Moreover, the charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing” (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666).

Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination.  Accordingly, the decision of a superintendent to suspend a student in excess of five school days following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of R.A., 48 Ed Dept Rep 426, Decision No. 15,903; Appeal of D.H., 47 id. 77, Decision No. 15,631).

First, I find that, in this case, the superintendent’s notice was sufficient for petitioners to prepare an effective defense.  Moreover, since the record does not include petitioners’ appeal to respondent, there is no evidence that the issue of vagueness was raised on appeal to respondent, and it cannot be raised here before me in an appeal pursuant to Education Law §310 denovo (Appeal of C.M., 50 Ed Dept Rep, Decision No. 16,142).  Similarly, there is no evidence that petitioners’ other allegations regarding the code, the hearing officer and coach were raised below, and that they are properly before me.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  I find that petitioners have failed to meet their burden of establishing that these issues are properly before me, or that they have any legal merit.

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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).

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 C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).

At the hearing, the dean and the assistant principal testified regarding the investigation process, introduced into evidence the three statements written by B.B., and described their interviews with B.B. in which he verbally admitted his participation, not only in the March 16 incident, but also in past incidents.  Although in his direct testimony B.B. denied that he had tea-bagged, humped or touched the victim in any way on March 16, 2010, his testimony is contradicted by the testimony of the dean and assistant principal.  It is also contradicted by B.B.’s own written statements produced the day after the precipitating incident, in which he described the March 16 incident in detail, admitted to participating in two other incidents involving tea-bagging, and to being a victim of tea-bagging when he was in seventh grade.  Specifically regarding the March 16, 2010 incident, B.B. wrote that on the bus back from the game, a teammate yelled, “let’s teabag [the victim];” so they waited for him in the locker room, and attacked him when he came in.  B.B. admitted that he “did partake in this an [sic] I am willing to take consacwences [sic].”  However, he stated that the other students pushed the victim down and tea-bagged him repeatedly and that he only did it once.  He also admitted to being aware that these attacks were taking place, and that he failed to inform a responsible adult.

In sustaining all four charges, the hearing officer considered the testimony of all of the witnesses and stated that she gave “careful and thoughtful consideration of the weight of the credible evidence on the record.”  On the record before me, I find that the hearing officer’s determination of credibility is consistent with the facts and that the determination of guilt on all four charges is based on competent and substantial evidence.[6]  

Pursuant to Education Law §3214(3)(c), “[t]he hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent.  The report of the hearing officer shall be advisory only, and the superintendent may accept all or any part thereof.”  Petitioners contend that the hearing officer improperly failed to recommend a penalty to the superintendent.  The hearing officer recommended to the superintendent that a “further suspension should be imposed” and left the “scope of further discipline” to the superintendent’s discretion.  While a superintendent would be better served with an advisory recommendation as to the duration of the penalty (seee.g., Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909), the hearing officer’s general recommendation that an additional suspension should be imposed fulfills the statutory requirement and is not improper, particularly since the superintendent is not bound by any recommendation as to penalty (see Education Law §3214[3][c]).  I recommend, however, that the district’s hearing officers include such recommendation in future determinations.

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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).

Suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  A board of education has broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it can be shown that the board has abused its discretion, the policy will be upheld (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of D.K., 48 id. 276, Decision No. 15,857).

The superintendent continued B.B.’s suspension through April 16, 2010 and suspended B.B. from athletic participation for the remainder of the 2009-2010 school year and the fall semester of the 2010-2011 school year.  Although B.B. had no prior disciplinary history, expressed remorse about his behavior and the desire to apologize to the victim of the March 16 incident and to victims of the other incidents in which he was involved, he nonetheless admitted his participation in the charged conduct.  His behavior is all the more shameful considering that he had been the victim of similar attacks when he was a younger member of the volleyball team.  Nevertheless, his victimization and/or submission to peer pressure cannot erase his culpability.  Such acts of bullying and intimidation cannot be tolerated.  They are a threat to the safety and security of students, and school officials must take all precautions and actions to eliminate such behavior.  Under these circumstances, I find that the penalty is not irrational or unreasonable and is within respondent’s discretion.

The superintendent, however, did not render his determination until March 30, 2010.  While the delay in rendering the disposition is not a basis for overturning the suspension in its entirety, B.B.’s continued exclusion from school for two school days after the hearing on March 26 and prior to the issuance of the superintendent’s determination on March 30 is improper (Appeal of L.P., 50 Ed Dept Rep, Decision 16,252; Appeal of V.C., 45 id. 571, Decision No. 15,419).  Accordingly, the suspension for March 29 and 30, 2010, must also be expunged from B.B.’s record.  However, to the extent the athletic suspensions are part of B.B.’s record, they are upheld and not expunged.

Petitioners contend that the hearing officer should have recused herself because, as assistant superintendent for student services, she had been aware of the March 16, 2010 incident, was involved in determining the charges against B.B. and thus lacked impartiality.  As discussed above, petitioners’ claims regarding the hearing officer are not properly before me.  Nonetheless, I note that a hearing officer's mere possession of prior knowledge is not a violation of B.B.’s due process rights (Appeal of Meredith, 33 Ed Dept Rep 530, Decision No. 13,138).  Due process is not violated unless the hearing officer, with prior knowledge of the underlying event, allows this prior knowledge to improperly influence her decision or uses her prior knowledge as a basis for her decision as an alternative to evidence presented during the hearing (Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241; Appeal of Meredith, 33 Ed Dept Rep 530, Decision No. 13,138).

In this case, the hearing officer averred that while she was aware of the investigation and that petitioners’ son was allegedly one of the students involved, she “did not allow my prior knowledge of the aforementioned investigation to influence my determination of guilt or, for that matter, to act as a basis for my determination that Petitioner [sic] was guilty of the open charges.”  The transcript shows that the hearing officer based her determination “solely on the evidence that was presented to me today and today’s testimony.”  As noted above, my review of the hearing transcript reveals competent and substantial evidence to support a determination of guilt.  Accordingly, I find no bias or impropriety on the part of the hearing officer.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the suspension of B.B. from March 19 through March 25, 2010, and March 29 through March 30, 2010, be annulled and expunged from B.B.’s record.

END OF FILE.

[1] According to Wikipedia, “tea-bag” is “a slang term for the act of a man placing his scrotum ... onto the face or head of another person; ... it has been used during hazing or bullying incidents with reports including groups holding down victims while the perpetrator” engages in such act.

[2] The involvement of other students in this incident is also the subject of three related appeals (seealsoAppeal of T.B., 52 Ed Dept Rep, Decision No. ___; Appeal of T.T. and K.T., 52 id., Decision No. ___; Appeal of S.Z. and K.Z., 52 id., Decision No. ___).

[3] Respondent states that the suspension was continued for only ten additional days (March 26 plus April 6 through 16) because there was a spring recess from March 29 through April 5, 2010.

[4] Those conditions were:  participation in “Sensitivity Training” and completion of a 500-word essay answering five questions:  What is sexual harassment?; List some causes of sexual harassment; What is meant by the phrase “Boys will be boys?”; What are your responsibilities with respect to sexual harassment?; and Why were you accused of sexual harassment?

[5] Although petitioners allege that the principal’s letter was improperly sent by regular mail, the record lacks evidence of delivery method.  While I need not address this issue because the five-day suspension is expunged on other grounds, I remind respondent of its obligation to comply with the statute and regulation in all respects.

[6] I note that Charge 1 charged B.B. with “Intimidation of another student(s) including Title IX violations.”  This charge is sufficient to convey that B.B. committed an act of intimidation that constitutes sexual harassment under Title IX and to enable the student to prepare a defense,- and therefore must be sustained as discussed above (see Title IX of the Education Amendments of 1972, 20 USC §1681, etseq.; 34 CFR §106; seealso, e.g., U.S. Department of Education, Office for Civil Rights, Frequently Asked Questions about Sexual Harassment [http://www2.ed.gov/about/offices/list/ocr/qa-sexharass]).