Appeal of C.M., on behalf of her daughter T.M., from action of the Board of Education of the Vestal Central School District regarding student discipline.

Decision No. 16,583

(January 3, 2014)

Aswad & Ingraham, attorneys for petitioner, Thomas A. Saitta, Esq., of counsel

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, Michael G. Surowka, Esq., of counsel

KING, JR., Commissioner.--On or about March 16, 2011,petitioner commenced an appeal pursuant to Education Law§310 (“§310 appeal”) challenging the decision of the Board of Education of the Vestal Central School District (“respondent”) to uphold the suspension of her daughter,

T.M. On December 24, 2012, I sustained petitioner’s appeal(Appeal of C.M., 52 Ed Dept Rep, Decision No. 16,439).1

Pursuant to Article 78 of the Civil Practice Law and Rules, respondent appealed this ruling to Supreme Court, Albany County (“the court”). In a decision dated September25, 2013, the court remanded the matter to the Commissioner for a “reconsideration of whether the District had a keen interest in protecting the identities of the students in order to protect them from potential violence, and if so, did the District’s interest outweigh T.M.’s right of cross examination” in light of the decision of the U.S. District Court for the Eastern District of New York (“districtcourt”) in D.F. v. Bd. of Educ. of Syosset Cent. Sch.Dist., 386 F Supp 2d 119 (2005), aff’d 180 Fed Appx 232 (2dCir 2006), cert den 549 US 1179 (2007) (“D.F.”).

The student in D.F. attended sixth grade at one of the district’s middle schools. As part of an English class assignment, he was required to maintain a journal. After completing the assignment, the student continued to maintain his journal. In it, he wrote stories of a violent

1 The facts and procedural history underlying this matter are set forth in the original decision.

and sexual nature using the names of other students at the school, allegedly with their permission. When D.F. asked if he could read some journal excerpts during his voluntary lunchtime program, the instructor asked to read them first. The instructor found the contents disturbing and notified the school’s administration.

In addition to D.F.’s short-term suspension, the district scheduled a superintendent’s hearing to consider a long-term suspension. During the hearing, the district introduced, over the objection of D.F.’s attorney, statements from students describing their reaction to D.F.’s story. The students were not identified and D.F.’s attorney was not allowed to question them. D.F. argued that he was thereby denied the right to question witnesses in violation of his due process rights.2 The district court disagreed, finding that the district’s “interest in protecting the identities of the students outweighed any interest in cross-examination of them [D.F.] may have had.... [The district] reasonably considered [D.F.] to be potentially violent, and by not disclosing the names of the students the [district] was protecting them from possible retaliation by [D.F.]” (D.F., 386 F Supp 2d at 127).

In light of the court’s directive on remand, and based on the analysis in D.F. and the record before me, I find that the district’s interest in protecting the identities of the students in this case outweighed petitioner’s interest in questioning them. Accordingly, the appeal must be dismissed and Decision No. 16,439 is hereby overruled.

Initially, I note that T.M. was suspended for less than five days. 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

2 D.F.’s father appealed his suspension to the Commissioner pursuant to Education Law §310. Because petitioner failed to request expungement of D.F.’s records and D.F. had served the suspension, no further meaningful relief could be granted and the appeal was dismissed as moot (Appeal of A.F., 44 Ed Dept Rep 124, Decision No. 15,120). 2

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]).

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).

While students are entitled to certain due process protections in the context of student disciplinary proceedings, even in the case of a long-term suspension, which is not at issue in the instant appeal, students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings (Bd.of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133, 139-141)

In the case before me, T.M. was alleged to have participated in “Kick a Jew Day” at her high school, during which students kicked Jewish students. Petitioner admits that the event occurred and that several Jewish students were kicked by other students, but asserts that her daughter denies participating in the event. The record indicates that the principal became aware that the school’s small Jewish population was concerned about retaliation if they worked with the administration to identify the 3

students who participated in the incident. The principal averred that, during the investigation period, several student victims received telephone calls from families of the students who participated in the incident asking them not to implicate their children and that a student who witnessed T.M.’s conduct agreed to speak with the principal only in confidence. Indeed, the record includes a December7, 2010 email to the principal in which a student stated: “I spoke to several of the kids about meeting with you tomorrow morning and only 2 agreed to do so. A few are uneasy about pointing the finger at ‘friends’ as they feel that their friends [sic] intent was not the same as some of the other kids [sic].”

The record indicates that, subsequent to T.M.’s suspension, the name of the alleged victim was revealed to petitioners, who secured an affidavit from such student. The student averred that he did not recall whether T.M. kicked him as alleged and that, if she did, “she was merely fooling around. [T.M.] has never subjected me to any act of bullying or physical aggression. We have always gotten along well and remain friends.” Such statements conflict with those made in an affidavit by the assistant principal, who averred that the alleged victim reported that T.M. kicked him. I cannot conclude that, on this record, the student’s affidavit negates the information obtained by the principal that students and their families were reluctant to come forward and/or to be identified based on their fear of retribution. To the contrary, the record indicates that the principal reasonably believed at the time of the informal conference that her actions were necessary to protect the identities of student witnesses and victims and to keep them safe from retaliation involving further acts of bullying, harassment or/and discrimination.

Accordingly, the record before me in this case supports a finding that the district’s interest in protecting student identities outweighed petitioner’s interest in questioning such students, as the court concluded in D.F. (D.F., 386 F Supp 2d at 127). Under these circumstances, therefore, petitioner’s meeting with the principal and other school officials, who investigated the incident and interviewed witnesses and victims, constituted the required informal conference, at which petitioner had the opportunity to question complaining witnesses. 4

Petitioner alleges that the principal refused to answer any questions about “the specifics” of the December1, 2010 incident during the informal conference. Specifically, petitioner complains that the principal refused to provide her with the name of the student T.M. allegedly kicked, the name of the student witness, and the time and place at which the incident occurred. Petitioner admits in her reply, however, that “[w]hile claiming to have responded to petitioner’s questions, [the principal]only told her that a second student claimed to see [T.M.]kick a student, after saying something to the effect of, ‘Did you know its [sic] kick a [J]ew day?’” and that such incident occurred in a school hallway. The principal similarly avers that, during the informal conference, she informed petitioner that a student witnessed T.M. kicking a Jewish student during the school day on December 1, 2010and that petitioner was permitted to ask questions. The “specifics” that petitioner claims were not disclosed consist largely of the identities of the student witnesses and victims, which under the holding in D.F., the district was entitled to withhold. In addition, both assistant principals averred that they served as complaining witnesses at the conference and were willing to answer petitioner’s questions. 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). On this record, I cannot find that petitioner has carried her burden of proof with respect to this claim.

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 Rep441, Decision No. 15,909; Appeal of V.D., 48 id. 89,Decision No. 15,800). I also note that 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 5

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).

In this case, petitioner has neither alleged nor proven that respondent’s finding of her daughter’s guilt is not supported by competent and substantial evidence. In any case, the assistant principal asserted in an affidavit that, on January 25, 2011, the student victim clearly stated that petitioner’s daughter kicked him on December 1,2010. I do not find credible the student victim’s subsequent statement in an affidavit that he does not recall whether T.M. kicked him and that “[i]f she did she was merely fooling around....” Moreover, even if T.M.’s conduct was intended as a joke or horseplay, this is not a defense to her participation in an incident of discrimination and bullying and does not negate her guilt on the charge that she endangered the safety, morals, health or welfare of herself or others. Therefore, the appeal must be dismissed.

As I noted in Decision No. 16,439, the allegations presented in this appeal illustrate the serious safety, social and emotional issues raised by harassment, bullying and discrimination in public schools. The behavior of T.M. and the other students involved in the incident is totally unacceptable and cannot be tolerated. Respondent was justified in suspending T.M. and indeed would have been justified in imposing a more serious penalty. Accordingly, I am directing my Office of Student Support Services to review the actions taken by respondent in response to this incident and its implementation of the Dignity for All Students Act.

THE APPEAL IS DISMISSED. END OF FILE