Appeal of R.T. and S.T., on behalf of their son R.T., from action of the Board of Education of the Southold Union Free School District regarding student discipline.

Decision No. 16,581

(December 12, 2013)

William D. Moore, Esq., attorney for petitioners

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the decision of the Board of Education of the Southold Union Free School District (“respondent”) to suspend their son. The appeal must be sustained in part.

During the 2012-2013 school year, R.T. was a junior in respondent’s district. On April 3, 2013, R.T. was attending a psychology class in which the subject of that day’s lesson was “the seven stages of grief.” The psychology teacher was absent that day, so a substitute teacher taught the lesson in his place. Unbeknownst to the substitute teacher, many of the students in the psychology class, including R.T., were experiencing the various stages of grief from losses they had recently sustained, including the loss of a freshman student on R.T.’s cross country team. Rather than ask the students for input on their personal experiences with grief, the substitute teacher gave an anecdotal description of her own experience with grief as an adult as she discussed each of the seven stages. According to petitioners, many students were upset and offended by the substitute teacher’s monologue. As a result, according to petitioners, R.T. attempted to relieve the tension of the class presentation by taking a photograph of the substitute teacher with his camera phone and uploading it to a photo-sharing social media website known as “Instagram,” with a caption under the photograph which read, “I’m going to kill this bitch.” According to petitioners, the Instagram posting was intended to be a private joke, to be viewed only by R.T.’s “friends” on Instagram.

On the morning of April 4, 2013, a parent of one of R.T.’s classmates reported the Instagram post to the high school principal. As a result, the principal commenced an

investigation and called R.T. to his office for questioning. R.T. admitted that he took the photograph, added the caption, and privately shared it on Instagram.

On April 4, 2013, the principal suspended R.T. for five days, beginning April 4, 2013. Petitioners were advised of the suspension by telephone and met with the principal that day to discuss the incident. By letter dated April 4, 2013, which was hand-delivered to petitioners’ home on April 5, 2013, petitioners were advised that R.T. would be suspended from school from April 4 through April 10, 2013, for “[p]osting on the internet inappropriate Insta-gram picture/message; most specifically stating, ‘I’m going to kill this bitch.’ (Directed to a substitute teacher).” The letter further advised that R.T. would return to school on April 11, 2013, pending a superintendent’s hearing, and generally referred to the student-parent handbook for further guidance on out-of­ school suspension regulations and procedures.

On April 9, 2013, the superintendent served a notice of charges which scheduled a superintendent’s hearing for April 11, 2013. The notice repeated the charge from the suspension letter and stated that R.T. was alleged to have been “disorderly and/or conducted himself in such a manner as to endanger the safety, morals, health and welfare of himself and/or others.” A hearing was held on April 11, 2013. Three witnesses testified: the principal on behalf of respondent, and petitioner S.T. and her son, R.T., on behalf of petitioners. At the hearing, R.T. admitted to taking the photograph of his substitute teacher, adding the caption, and posting it on Instagram. However, R.T. testified that he intended his actions to be understood as a joke, to be viewed only by his Instagram “friends” and not the substitute teacher. At the close of the guilt phase of the hearing, the hearing officer found that the district “conducted an investigation, they spoke to the student who admitted posting it. The student posted it, he took a picture during class when he should have been listening....” She concluded that “there’s been substantial and competent evidence presented today that the student is guilty of his actions alleged in the letter of disorderly conduct,” because “the teacher did fear, she had a fear, she told [the principal] that she was upset, she felt unsafe, ... so was put in fear.”

Following the hearing, the superintendent sustained the charges against R.T. by letter dated April 12, 2013, in which he determined that “[b]y posting an image/message on Instagram that is deemed to be threatening to a teacher,

[R.T.] engaged in behavior that violated the school district code of conduct in that R.T. was disorderly and conducted himself in such manner as to endanger the safety ,morals, health, and welfare of others.” As a result, the superintendent determined, among other things, that the suspension would continue through the end of the 2012-2013school year (June 21, 2013); that the superintendent would retain the sole and exclusive discretion to reconsider the suspension after considering, among other things, a psychiatric report of R.T. dated April 9, 2013, which was introduced into evidence in the penalty phase of the hearing; and that home tutoring would be provided during the suspension.

By letter dated May 1, 2013, the superintendent advised that, “[a]fter careful consideration,” he had decided to modify R.T.’s suspension by allowing him to return to school, effective May 6, 2013, but that R.T. could not participate in any after school activities or school-sponsored activities for the remainder of the school year, with the exception of the SAT exam and the driver’s education program. In a decision dated May 9, 2013,respondent upheld “the determinations made by the [s]uperintendent.” This appeal ensued.

Petitioners challenge both the short and long-term suspensions and seek to have them overturned and expunged from R.T.’s records. With regard to the initial five-day suspension, petitioners claim that the notice was untimely and failed to inform them of their right to request an informal conference at which petitioners could question the complaining witnesses. They also contend that R.T. was improperly suspended for an additional day following the initial five-day suspension. With regard to the long-term suspension, they assert that they were deprived of their rights to due process because the hearing officer prevented a student witness from testifying on R.T.’s behalf despite written permission from the student’s parent. Petitioners also assert that respondent’s determination is not supported by substantial and competent evidence because (1)nothing in the record indicates that R.T. directed the Instagram posting at the substitute teacher or that the substitute teacher was in fear as a result of said posting;

(2) respondent based its conclusions on a section of the transcript where the tape of the hearing ran out; and (3)R.T.’s own testimony contradicts the charges in that he intended the posting to be a private joke to his friends only, and the audience to which it was directed understood it to be a joke. Finally, petitioners claim that the

hearing record is incomplete; that the superintendent failed to consider the psychiatrist’s report, which was part of the hearing record, prior to making a determination as to the penalty; and that respondent failed to provide out-of-school tutoring until two weeks after the suspension began on April 4, 2013.

Respondent argues that the decision to suspend R.T. was based upon competent and substantial evidence; that the penalty was proportionate to the severity of his violation of the code of conduct; that petitioners were afforded appropriate due process; and that the First Amendment does not protect threatening speech.

I must first address the procedural issue of mootness. 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 EdDept 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). Because R.T.’s suspensions have been served, the appeal is therefore moot, except to the extent petitioners seek expungement of R.T.’s record (Appeal of

E.B. and F.B., 53 Ed Dept Rep, Decision No. 16,545; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666). Similarly, the appeal is also moot to the extent that petitioners request relief on their claim that respondent failed to provide out-of-school tutoring until April 18, 2013, two weeks after the suspension began on April 4, 2013 (Appeal of K.M., 51 Ed Dept Rep, Decision No. 16,320; Appeal of C.M.,50 id., Decision No. 16,142; Appeal of D.C., 41 id. 277,Decision No. 14,684; Appeal of Harlan, 40 id. 309, Decision No. 14,488).

Turning 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]). Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]). Oral communication with a parent regarding a suspension is not, however, 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).

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., 48id. 348, Decision No. 15,882).

By letter dated April 4, 2013, the first day of R.T.’s suspension, the principal notified petitioners of R.T.’s five-day suspension. Petitioners allege that the suspension letter was not delivered to them prior to the start of the suspension; rather, they claim that it wash and-delivered on April 5, 2013, the second day of the suspension. The suspension letter did not assert, nor does the record contain any indication, that R.T.’s presence in school posed a continuing danger to students or an ongoing threat of disruption to the academic process. The April 4,2013 letter also failed to apprise petitioners of their

right to an informal conference at which they could question the complaining witnesses in the presence of the principal. While respondent generally denies petitioners’ assertions, the district submits no evidence to the contrary and the record contains no evidence that petitioners received prior written notice of the suspension and their right to an informal conference with the principal prior to the suspension. Accordingly, the entire short-term suspension must be expunged from R.T.’s record(Appeal of E.B. and F.B., 53 Ed Dept Rep, Decision No.16,545; Appeal of T.T. and K.T., 52 id., Decision No.16,386; Appeal of R.F. and D.F., 52 id., Decision No.16,369).

Petitioners also allege that R.T. was improperly suspended for more than five days prior to the disposition of a superintendent’s hearing, which took place on April11, 2013, the sixth day of R.T.’s suspension. Respondent contends that at most, the remedy for the sixth day of the initial suspension should be expungement of that sixth day only. Education Law §3214(3)(c) mandates that a suspension may not continue beyond five school days unless and until the student has been afforded an opportunity for a hearing and a determination adverse to the interests of that student has been made (Ross v. Disare, 500 F.Supp. 928

[S.D.N.Y. 1977]; MacDonald v. Tompkins, 67 Misc.2d 338 [Sup. Ct. Onondaga Co. 1971]; Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,252; Appeal of Spensieri, 40 id. 51,Decision No. 14,419). Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing is held and a decision is rendered thereon within the initial five-day suspension period, unless an adjournment is requested by the student or parent (Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,252; Appeal of D.H., 47 id. 77, Decision No. 15,631; Appeal of McMahon, et al., 38 id. 22, Decision No. 13,976). Respondent scheduled the hearing for April 11, 2013, the sixth day of R.T.’s suspension. As a result, a decision could not have been rendered within the initial five-day suspension period. Respondent does not allege that an adjournment was requested by the student or petitioners. Accordingly, in addition to the initial five-day suspension, the sixth day of suspension, April 11, 2013, must also be expunged from R.T.’s record.

Although the initial six days of R.T.’s suspension must be expunged, that does not entirely resolve the matter, because a long-term suspension was imposed following a superintendent’s hearing.

With respect 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., 293AD2d 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). Petitioners’ son admitted on the hearing record to engaging in certain conduct, including taking the photograph, adding the caption, and posting it on Instagram. Respondent maintains that R.T.’s admission is sufficient proof of guilt. R.T. also claimed, however, that he intended his actions to be understood as a joke shared with only his friends on Instagram, and not as a threat directed toward his substitute teacher.

Whether the student intended the conduct as a joke or never intended to carry out the threat is irrelevant to afinding of guilt on the charge of disorderly conduct (seeSaad-El-Din v. Steiner, 101 AD3d 73, 77-78; cf. Cuff v. Valley Cent. Sch. Dist., 677 F3d 109, 114 [whether a student intended a threat as a joke or never intended to carry it out is irrelevant to a determination of whether a resulting suspension violated his constitutional right to free speech]). A school district may constitutionally discipline a student for making verbal or written threats where the student’s conduct “‘might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities’” (Cuff, 677F3d at 113, quoting DeFabio v. E. Hampton Union Free Sch.Dist., 623 F3d 71, 78; Wisniewski v. Bd. of Ed. of Weedsport Cent. Sch. Dist., 494 F3d 34, 38-39; Saad-El-Din,101 AD3d at 76-77). The constitutional test is objective, “focusing on the reasonableness of the school administration’s response, not on the intent of the student” (Cuff, 677 F3d at 113, citing Tinker v. Des MoinesIndep. Cmty. Sch. Dist., 393 US 503, 506).

In a case with similar facts, the United States Court of Appeals for the Second Circuit upheld a suspension of a student who generated and transmitted from his parents’ home computer an internet “buddy icon” picture depicting the student’s teacher being shot, along with the words,

“Kill Mr. Vandermolen” (Wisniewski, 494 F3d at 38-39). The student admitted to the conduct, but argued that he made the icon as a joke (id. at 36). Nonetheless, the Second Circuit found that the student’s conduct posed a reasonably foreseeable risk of substantial disruption at the school, where “[t]he potentially threatening content of the icon and extensive distribution of it, which encompassed 15recipients,” including classmates, “made the risk at least foreseeable to a reasonable person, if not inevitable” (id. at 39-40; see also Appeal of M.W. and L.W., 50 Ed Dept Rep, Decision No. 16,238; Appeal of James B., 32 id. 637,Decision No. 12,940).

Here, R.T. admitted to taking a photograph of the substitute teacher with his cell phone, adding the phrase “I’m going to kill this bitch,” posting it on Instagram, and showing a classmate - all while in school, during class. Moreover, petitioners’ assertion that the Instagram posting was “private” is belied by a hearing exhibit printout of the Instagram posting, showing 16 “likes” by R.T.’s “friends” on Instagram.1 Regardless of R.T.’s intentions, it was reasonably foreseeable that his Instagram post - which could reasonably be understood as a serious threat - would be seen by other students, parents, and school officials and cause a substantial disruption in the school environment. It was not necessary for respondent, either for constitutional reasons or to establish R.T.’s guilt of the charge, to prove that R.T.’s actions resulted in actual disruption of the class or school or that the substitute teacher was in fear that R.T. would carry out his threat. Therefore, I find no basis upon which to overturn respondent’s finding of R.T.’s guilt of the charge of disorderly conduct and endangering the health, safety, and welfare of others.

Petitioners also argue that the hearing record is incomplete, since the hearing officer apparently based some of her conclusions on portions of the hearing that were not captured in the transcript because the tape recording cutout. Respondent admits that a portion of the superintendent’s hearing was not recorded, but avers that the missing portion is irrelevant to petitioners’ claims. Education Law §3214(3)(c) provides in pertinent part:

1Petitioners allege that respondent “intercepted the private ‘Insta-gram’ message” from its information technology system without R.T.’s consent “in violation of applicable state and federal law” and the U.S. Constitution. However, petitioners provide no evidence to support this claim, nor do they identify any state or federal laws that were allegedly violated.

A record of the hearing shall be maintained,

but no stenographic transcript shall be

required and a tape recording shall be

deemed a satisfactory record. . . . An

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. Where a hearing has been held, the board of education may not properly decide an appeal from a decision suspending a student unless it reviews the entire record of the hearing(Appeal of A.R., 43 Ed Dept Rep 284, Decision No. 14,996;Appeal of Muldoon, 41 id. 4, Decision No. 14,592; Matter of Corbett, 12 id. 184, Decision No. 8,599; Matter of Taylor,10 id. 95, Decision No. 8,217). An intelligible record of the hearing must be maintained in order to permit a meaningful review (Appeal of a Student With a Disability,52 Ed Dept Rep, Decision No. 16,434; Appeal of A.G., 41 id. 262, Decision No. 14,681).

Upon review of the transcript included in the record, I find that there are at least three sections of testimony missing: a portion of the principal’s testimony regarding the substitute teacher; a portion of petitioner S.T.’s testimony; and a portion of the principal’s testimony during the penalty phase. I note that respondent’s hearing officer was obligated to re-start the hearing upon learning that the tape had stopped recording. I also note in that regard that the hearing officer does not appear to have made a report of her “findings of fact and recommendations as to the appropriate measure of discipline,” in contravention of respondent’s own code of conduct and Education Law §3214(3)(c). Indeed, the parties cite only the hearing transcript for the hearing officer’s findings of fact and determination as to guilt, but no recommendation as to penalty appears in the transcript.

Petitioners, however, do not articulate what statements are missing from the hearing record, the length of the gap in the transcript, or how the flaw(s) in the hearing record impacted respondent’s decision on appeal or mitigated against the finding of guilt or the penalty imposed (Appeal of a Student With a Disability, 52 Ed Dept Rep, Decision No. 16,434; Appeal of T.W. and P.K., 46 id. 154, Decision No. 15,472; Appeal of A.G., 41 id. 262,Decision No. 14,681). While petitioners offer to submit additional affidavits to complete the missing portions, petitioners have not done so and failed to meet their burden of showing a clear legal right to relief in this

regard, and I decline to overturn respondent’s determination on this ground in light of the unrefuted evidence of the student’s guilt of the charge. Upon review, I find that the record is adequate for review in accordance with Education Law §3214 (Appeal of a Student With a Disability, 52 Ed Dept Rep, Decision No. 16,434;Appeal of T.W. and P.K., 46 id. 154, Decision No. 15,472).Respondent clearly erred in not meeting its obligation to maintain a full record and not having the hearing officer make a report of her findings of fact and penalty recommendation to the superintendent. However, petitioners have failed to prove that such errors were prejudicial and not harmless error (see e.g., Appeal of G.B. and B.B., 52Ed Dept Rep, Decision No. 16,383; Appeal of Snow berger, 24id. 256, Decision No. 11,386).

Petitioners also appear to claim that they were denied the opportunity to question complaining witnesses because “the substitute teacher did not appear at the hearing.” Respondent maintains that since R.T. admitted to taking the photograph, adding the verbiage, and posting it on Instagram, there is no basis to overturn the finding of guilt. Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of F.W., 48 Ed Dept Rep 399, Decision No.15,897). The record indicates that neither the parent who first reported the Instagram photograph to the principal, nor the substitute teacher who allegedly felt unsafe as a result of the Instagram posting testified at the hearing. However, I am not persuaded that respondent had an affirmative obligation to have either the parent who initially reported the Instagram posting or the substitute teacher testify. The record unequivocally establishes that

R.T. made the threatening statement, posted it on Instagram, and showed it to another student. As noted above, respondent was not required to demonstrate that the substitute teacher was in fear to prove R.T.’s guilt on the charge of disorderly conduct.

In any case, petitioners also had a right to call these witnesses for questioning at the superintendent’s hearing, and they do not allege that they actually called any witnesses other than a student witness to be presented on R.T.’s behalf. Moreover, the record indicates that the

principal, who investigated the incident and interviewed petitioners’ son, testified as a witness for respondent and that petitioners had the opportunity to and did in fact cross-examine him. Therefore, I find that, under these circumstances, petitioners were not denied the right to question complaining witnesses.

Petitioners assert that the substitute teacher was required to testify because the hearing officer apparently based her finding of guilt on the principal’s description of the impact of R.T.’s conduct on the substitute teacher, i.e., fear and feeling unsafe. In reaching that conclusion, the hearing officer apparently relied upon hearsay testimony by the principal. However, hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (see Bd. of Educ. of Monticello Cent. School Dist.

v. Commissioner of Educ., et al., 91 NY2d 133; Gray v.Adduci, 73 NY2d 741; Appeal of J.A., 48 Ed Dept Rep 118,Decision No. 15,810). Moreover, under Education Law §3214(3), the hearing officer’s decision is purely advisory and the superintendent subsequently found that “[b]y posting an image/message on Instagram that is deemed to be threatening to a teacher, [R.T.] engaged in behavior that violated the school district code of conduct in that R.T. was disorderly and conducted himself in such manner as to endanger the safety, morals, health, and welfare of others.” Therefore, even if I were to accept petitioners’ argument that the hearing officer erred in determining guilt based on the impact on the substitute teacher, the superintendent cured any such error by properly determining R.T.’s guilt without regard to any showing of fear on the substitute teacher’s part.

Petitioners also assert that respondent violated R.T.’s due process rights and Education Law §3214 by failing to allow petitioners to present the testimony of a student as a witness on R.T.’s behalf during the hearing. Petitioners claim that they presented written consent from the student’s parents, which authorized the student to testify. Petitioners allege that, notwithstanding the witness’s availability to testify, the principal refused to release the student from class to testify at the hearing, even during his lunch period. At the hearing, the principal explained that, “[t]here is no reason for this as there is no impact on [the student witness], the hearing we are having is exclusively about [R.T.] and his actions.” The hearing officer stated that she would “defer to the district and put their position on the record as to why

[the student witness] is not coming to testify today.” Respondent claims that the testimony of the student witness would have been irrelevant to the issue of R.T.’s guilt.

It appears from the record before me that the purpose of the student witness’s testimony was to demonstrate that he, and possibly other students, interpreted R.T.’s conduct as a joke and not a threat. However, as indicated above, whether R.T. intended the threat as a joke is irrelevant to his guilt of the charge of disorderly conduct. While petitioners had the right to present witnesses on R.T.’s behalf and I find that the hearing officer erred in precluding the student witness’s testimony without sufficient justification, I also find that this constitutes harmless error since the student witness’s testimony would have been irrelevant to the issue of R.T.’s guilt in light of R.T.’s admission of guilt and the weight of the evidence in support of the facts underlying the charge against him(Appeal of Grihin, 38 Ed Dept Rep 399, Decision No. 14,064). Therefore, I find that the superintendent’s finding of guilt is supported by the record and provides an adequate basis for the imposition of the suspension.

I have reviewed petitioners’ remaining contentions and find that they have no merit.

While on the record before me, petitioners have not demonstrated that the errors committed by respondent and its hearing officer in this case constituted prejudicial error warranting expungement of R.T.’s long-term suspension, respondent needs to review its procedures to ensure that future suspension hearings are conducted in full compliance with Education Law §3214.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the suspension from April 4, 2013,through April 10, 2013, be expunged from R.T.’s record. END OF FILE