Decision No. 17,267
Appeal of J.E., on behalf of his son A.E., from action of the Board of Education of the Port Jefferson Union Free School District regarding student discipline.
Decision No. 17,267
(November 29, 2017)
Ingerman Smith, LLP, attorneys for respondent, Kerrin A. Bowers, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals a decision of the Board of Education of the Port Jefferson Union Free School District (“respondent”) to impose discipline on his son, A.E. (“the student” or “A.E.”). The appeal must be sustained in part.
At all times relevant to this appeal, the student attended respondent’s middle school. On December 20, 2011, the student allegedly displayed a note containing inappropriate language to a female classmate (“the classmate”) during science class. The student’s classroom teacher discovered the note and provided it to the dean who, in turn, provided it to an assistant principal. The assistant principal initially spoke with the student about the incident on December 20. On December 21, the assistant principal interviewed several students including the classmate and the student who is the subject of this appeal. The assistant principal subsequently met with the student’s mother and provided her with a copy of a notice which imposed a five-day suspension, from December 22 through January 6, for “[h]arassment directed at an individual or group on the basis of sex.” The record also contains an otherwise identical copy of this letter signed by the superintendent on behalf of the building principal.
In a letter to petitioner and the student’s mother dated December 23, the superintendent indicated that a long-term suspension hearing would be convened on January 3. The letter further stated that “[a]dditional information is forthcoming regarding your due [process] rights related to [the student’s] suspension from school.”
In a letter dated December 28, the superintendent provided information on the student’s due process rights and indicated that the student was charged with “generat[ing] and display[ing] a note containing sexually explicit language to a female student” and “act[ing] in an insubordinate and disorderly manner by yelling...” at the assistant principal to sit down and call the superintendent to his office.
The hearing, presided over by a hearing officer, convened as scheduled. On January 5, the hearing officer recommended to the superintendent that the student be found guilty of the charged conduct and suspended for an additional two and a half months through March 30. The superintendent adopted the hearing officer’s recommendations. On March 7, petitioner and the student’s mother appealed the student’s suspension to respondent. In a letter dated March 14, respondent indicated that it had considered and denied petitioner’s appeal on March 13. This appeal ensued.
Petitioner contends that he was not apprised of his right to question complaining witnesses regarding the student’s short-term suspension. Specifically, petitioner argues that the assistant principal told him “there were no witnesses and no one to interview,” but that the assistant principal subsequently offered hearsay testimony which revealed that certain students had observed the student display the note. Petitioner further contends that the district improperly “added” the charge of insubordination in the superintendent’s December 28 letter, which was “not mentioned” in the student’s five-day suspension notice. For remedies, petitioner seeks expungement of the student’s suspension, removal of the assistant principal and that the district “adopt a policy of informing parents of their rights under Section 3214 of [the] Education Law at the time of a disciplinary action.”
Respondent argues that it followed all appropriate legal procedures in imposing discipline upon the student. Respondent specifically contends that it offered petitioner the opportunity to meet complaining witnesses prior to the imposition of the student’s suspension. Respondent admits that it charged the student with insubordination in a letter dated December 28, but denies that any aspect of this charge was improper. Respondent additionally contends that the Commissioner is without jurisdiction to order removal of the assistant principal or to order it to adopt a policy of informing parents of their rights under Education Law §3214 at the time of a disciplinary action.
Turning first to petitioner’s challenge to the five-day suspension, 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[b], 8 NYCRR §100.2[l]; 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[b], 8 NYCRR §100.2[l]).
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).
Petitioner alleges that he was deprived of his right to question those students who allegedly witnessed the student display the note in question in class on December 20 prior to imposition of the student’s short-term suspension. However, for the reasons discussed below, I need not address petitioner’s specific objection because respondent’s actions regarding the five-day suspension were procedurally flawed and otherwise warrant expungement.
The record reflects that the assistant superintendent hand-delivered a five-day suspension notice on December 21 to the student’s mother. However, the five-day notice was signed by the assistant principal and indicated that petitioner and the student’s mother had the right to an immediate informal conference with the assistant principal and not, as required by Education Law §3214(3)(b)(1), the principal. Education Law §3214(3)(a) authorizes a board of education, board of trustees, sole trustee, superintendent of schools, district superintendent, or principal of a school to suspend a “pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.” The statute does not authorize an assistant principal to suspend students, nor does it authorize the principal to delegate his authority to suspend (Appeal of C.R., 45 Ed Dept Rep 303, Decision No. 15,330; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883; Appeal of E.R., 40 id. 599, Decision No. 14,565). Therefore, the assistant principal had no authority to issue the student’s five-day out-of-school suspension notice, and this initial short-term suspension and its accompanying notice were ultra vires and must be annulled.
Apparently recognizing that the initial notice was invalid, at some point after the assistant principal met with the student’s mother, respondent hand-delivered to petitioner an otherwise identical copy of the five-day suspension notice, also dated December 21, which was signed by the superintendent on behalf of the principal. In an affidavit, the assistant principal attests that “[o]n or about” December 21, the second five-day suspension notice informing petitioner and the student’s mother of their right to an informal conference “was hand[-]delivered” to petitioner and the student’s mother. In its answer, respondent alleges that the second notice was hand-delivered to petitioner by a security guard, but only provides an affidavit of the assistant principal which does not specify who hand-delivered the notice or definitively allege that such hand-delivery was made before the suspension commenced. In a verified reply, petitioner asserts that the second five-day suspension notice was hand-delivered on “the following evening, twenty[-]eight hours after the suspension” was imposed. Based upon this evidence, I find that petitioner has established that respondent failed to afford either petitioner or the student’s mother an opportunity for an informal conference with the principal prior to commencement of the student’s suspension as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4). In this regard, respondent does not assert, and the record does not show, that the student presented a continuing danger to persons or property or an ongoing threat of disruption to the academic process. Additionally, while the second notice did inform petitioner of his right to an informal conference with the principal, it was defective insofar as it did not apprise petitioner of his right to question complaining witnesses at the informal conference (see Education Law §3214[b]; Appeal of B.B., 49 Ed Dept Rep 253, Decision No. 16,017). Therefore, based upon these procedural flaws, I will expunge the student’s five-day suspension from his record.
Next, petitioner contends that respondent impermissibly “added” the charge of insubordination to the student’s notice of charges for the long-term suspension. The record reflects that, following the student’s five-day suspension, the superintendent sent petitioner and the student’s mother a letter dated December 23 which informed them of the time and location of the long-term suspension hearing. As noted above, this letter indicated that the district would soon provide information “regarding your due [process] rights related to [the student’s] suspension from school.” In a letter dated December 28, the superintendent identified two charges against the student; first, that the student “generated and displayed a note containing sexually explicit language to a female student” on December 20 and, second, that the student “acted in an insubordinate and disorderly manner by yelling at an [a]ssistant [p]rincipal” on December 20. Therefore, petitioner’s allegation that the district belatedly “added” a charge of insubordination is not supported by the evidence in the record. Instead, the record shows that the district issued a single notice of charges on December 28, which identified the conduct the district sought to prove at the hearing. Therefore, petitioner’s claim must be dismissed.
With respect to the student’s 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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800). 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).
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).
The only claim raised in the petition regarding the student’s long-term suspension is that petitioner was denied the opportunity to cross-examine witnesses against his son at the superintendent’s hearing because respondent relied upon hearsay testimony to establish that A.E. wrote the note containing the offensive language. As noted above, it was permissible for respondent to rely upon hearsay testimony in determining the student’s guilt. In this case, the assistant principal testified that the classmate, who was sitting next to A.E. in science class, told him that she had watched A.E. write the note and that he flashed it at her during science class. The science teacher testified that he noticed A.E. doing something underneath his desk and that he found the note containing inappropriate language underneath A.E.’s desk. The record further indicates that the assistant principal, the dean and another teacher compared the handwriting in the note to a sample of A.E.’s handwriting and concluded, based on lay analyses, that the handwriting samples were similar. On this record, I find that there was competent and substantial evidence in the record to support respondent’s finding that A.E. was guilty of the charge of generating and displaying a note containing sexually explicit language to a female student.
With respect to the second charge of acting in an insubordinate and disorderly manner by yelling at the assistant principal, A.E. admitted that he did tell the assistant principal to sit down and that he wanted the superintendent “in here.” The assistant principal testified that A.E. yelled this at him, while A.E. testified that he used a softer tone than the assistant principal claimed. 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). Thus, regardless of the volume of A.E.’s voice, I find that the record contains competent and substantial evidence, including A.E.’s own testimony, to support a finding of guilt on this charge as well. A student’s demand that a school administrator sit down and summon the superintendent is inherently insubordinate and disorderly.
The petition contains no allegations relating to the severity of the penalty imposed on A.E. However, in his reply, petitioner alleges for the first time that the severity of the long-term suspension was largely based on A.E.’s disciplinary history, which is “largely composed” of a prior suspension in which the assistant principal denied petitioner the right to question witnesses, and which is the subject of a civil action. 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, petitioner’s allegations in the reply relating to A.E.’s past disciplinary history and its impact on the severity of the penalty are not properly before me in this appeal. Petitioner has not otherwise alleged or proven that the penalty imposed was so excessive that it warrants substitution of my judgment for that of respondent. Therefore, on this record I have no basis to set aside the imposed penalty.
Petitioner’s request to remove the assistant principal, which consists of a single reference to such relief in his petition, must be denied. Assistant principals are school district employees and not school officers subject to removal pursuant to Education Law §306 (see e.g. Appeal of Rosten, 49 Ed Dept Rep 237, Decision No. 16,014). Additionally, I note that petitioner did not comply with any of the procedural requirements for removal applications contained in 8 NYCRR §277.1(b), including its specialized notice provision and personal service of the petition on the assistant principal. Therefore, petitioner’s application to remove the assistant principal must be denied.
Petitioner further requests that respondent “adopt a policy of informing parents of their rights under Section 3214 of [the] Education Law at the time of a disciplinary action.” However, petitioner has not proven that respondent lacks such a policy. Nevertheless, given respondent’s noncompliance with Education Law §3214 and 8 NYCRR §100.2(l) of the Commissioner’s regulations concerning the student’s five-day suspension and its failure to describe or submit a copy of its disciplinary policy on appeal, I admonish respondent to review its policies on student discipline, particularly with respect to short-term suspensions.
Finally, I am compelled to note that petitioner has alleged and proven that the written transcript of the hearing submitted by the district in this appeal is incomplete. Therefore, I have accepted the complete transcript submitted by petitioner and have based my review on the complete transcript, which is reflected in the audio recording of the hearing. Petitioner initially noted this discrepancy in his appeal to respondent dated March 7, 2012. The district admits in its memorandum of law that the written transcript is incomplete, but asserts that this was harmless error because it also submitted an audio recording which contains the entire record of the hearing. I admonish the district that, should it discover a similar error in the future, it must advise the Commissioner that such an error exists and direct the Commissioner to the audio recording of the hearing.
I have considered the parties’ remaining arguments and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent’s short-term suspension of A.E. from December 22, 2011 through January 6, 2012 be expunged from his record.
END OF FILE
 Although the hearing transcript indicates that the hearing was held on January 4, the parties appear to agree that this was a typographical error and that the hearing took place on January 3.
 Because I have expunged the student’s five-day suspension for other reasons, I need not address petitioner’s contention that the insubordination charge should have been included in the initial five-day suspension notice. I note, however, that both the short-term and long-term suspension notices provided sufficient notice of the underlying conduct with which the student was charged, the harassment charge alone would be sufficient to justify a five-day suspension, and petitioner was able to retain counsel to represent the student at the long-term suspension hearing.
 The teacher initially referred to the desk as a “table,” but subsequently clarified that he was referring to A.E.’s desk, which had two “cubbies” underneath.
 Ordinarily, such contentions would not be accepted as a memorandum of law should consist of arguments of law (8 NYCRR §276.4) and may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). However, under the unique circumstances of this case, I take administrative notice of respondent’s response to petitioner’s allegations.