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Decision No. 17,268

Appeal of N.S., on behalf of her son L.L., from action of the Board of Education of the Spencerport Central School District regarding student discipline.

Decision No. 17,268

(December 4, 2017)

Law Offices of Van Henri White, attorney for petitioner, Van Henri White, Esq., of counsel

Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Spencerport Central School District ("respondent") to impose discipline on her son (“the student”).  The appeal must be sustained in part.

The events giving rise to this appeal took place on December 17 of the student’s tenth-grade year.  On that day, the student, a friend of the student (the “friend”), and a female student (“the victim”) gathered in an alcove located off of a school hallway.  While the parties agree that the student and the victim engaged in intimate physical contact, they disagree on appeal as to whether this contact was consensual.  The record reflects that, at one point, the victim tried to leave, but was told by the friend that she could not unless she kissed, or engaged in sexual contact with, the student.  The victim was eventually able to leave the alcove.

Following these events, the student met with the assistant principal and another administrator.  The student drafted a written statement in the assistant principal’s presence (the “first admission”).  In the first admission, the student admitted to speaking about “sexual things” with the victim.  The student also admitted that he attempted to physically touch the victim twice, and that she resisted such efforts.  According to the student, the first time the victim “moved a little.”  The second time, after the victim said no, the student “stopped touching her.”  The student also asserted that, at one point, he and the victim “started to kiss and I touched her but she didn’t oppose [this].”

After obtaining the first admission, the assistant principal interviewed the victim.  After doing so, he decided to interview the student again with petitioner present.  The assistant principal contacted petitioner, who arrived at the high school shortly thereafter.

The assistant principal proceeded to meet with the student and petitioner.[1]  According to the record, at some point during the meeting petitioner told the student that “if you made a mistake, you made a mistake” and that “you know who knows what happened.”  The student then proceeded to offer new details about the incident, indicating that his interaction with the victim began as consensual, but that the victim subsequently rebuffed his advances.  Specifically, the student asserted that the victim resisted his two attempts to pull the victim’s hand toward his genitals.  The student further asserted that the friend had slapped the victim on the buttocks and pulled her back into the alcove.  The student also admitted to touching the victim’s buttocks.  In response to these details, petitioner stated: “I’m mortified[;] you were raised better than this” and told the student that he “need[ed] to rewrite this statement and tell the whole truth.” 

The student proceeded to write a second statement (the “second admission”).  In this admission, the student admitted that he “took [the victim’s] hand and tried to put it on me” twice but that the victim resisted such efforts.  The student also indicated that the friend told the victim: “I’ll let you go if you give [the student] some neck.”[2]

On December 19, the principal imposed a five-day suspension for the student’s conduct, from December 19 through January 3.  This notice indicated that the student “admit[ted] to touching a female student without her consent” and that the student and friend “would not allow the victim to leave the area despite her attempts to flee.”  The notice stated that the student was charged with: (1) conduct endangering the health, welfare, safety and/or morals to self and others; (2) disorderly conduct; (3) disruptive behavior; (4) insubordinate behavior; and (5) violent behavior.  The five-day notice also stated that the student “admit[ted] to all charges.” 

A superintendent’s hearing was subsequently held on five separate dates.  In a written decision of approximately 50 pages, the hearing officer recommended that the student be found guilty of the charges and recommended a penalty of a 15-week suspension.  The hearing officer further recommended that, due to the length of the hearing, the student’s suspension during the pendency of the hearing be considered time served toward his suspension.  The superintendent thereafter adopted the hearing officer’s recommendations and allowed the student to return to school on the following Monday.  Petitioner appealed the superintendent’s decision to respondent, which denied petitioner’s appeal.  This appeal ensued. 

Petitioner alleges that the district committed various procedural errors which violated the student’s right to due process.  Specifically, petitioner contends that the district’s “investigation” was incomplete; that the district failed to provide petitioner with “critical evidence” prior to the suspension hearing; and that an attorney from respondent’s counsel’s firm who represented the district at the hearing (“hearing counsel”) inappropriately communicated with employees of the district in front of the hearing officer.  Petitioner further contends that the student’s written admissions are inadmissible because they were coerced by the assistant principal.  In the alternative, petitioner contends that the student did not admit to all of the conduct with which he was charged at the hearing.  Petitioner further argues that the district failed to adduce substantial and competent evidence of the student’s guilt.  Petitioner additionally asserts that the victim was a “willing participant” in the conduct, and that the hearing officer erred by failing to admit social media postings authored by the victim.  Finally, petitioner contends that the student’s suspension was unduly harsh.  Petitioner seeks expungement of the suspension from the student’s record.

Respondent denies petitioner’s assertions and contends that it acted appropriately, that the student admitted his guilt to the charged conduct and that it imposed an appropriate penalty under the circumstances.

Petitioner’s challenge to the student’s suspension must be dismissed as moot.  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).  Here, the student has served his suspension.  Therefore, any claim regarding the appropriateness of the penalty is moot (see e.g. Appeal of Kainz, 38 Ed Dept Rep 339, Decision No. 14,049).  However, petitioner also seeks expungement of the suspension from the student’s record and it is well-settled that an appeal will not be dismissed as moot to the extent that a petitioner seeks expungement of a disciplinary action from a student’s record (Appeal of D.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026; Appeal of E.B. and F.B., 53 id., Decision No. 16,545; Appeal of M.W. and L.W., 50 id., Decision No. 16,238).

Turning to the issue of the student’s guilt concerning the charge of “touching a female student without her consent,” as the parties recognize, the student provided two written admissions to the charged conduct.  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).  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 argues on appeal that these admissions should not be considered because they were the product of coercion.  Specifically, petitioner alleges that, at the meeting where the second admission was produced, the assistant principal told the student something to the effect of “if [the victim] was my daughter I would have a hard time keeping my hands to myself.”  However, petitioner does not explain how this comment coerced the student into falsely admitting his guilt.  Contrary to petitioner’s argument, were the student fearful that the victim’s parents would harbor animosity toward him based on his conduct, admitting his guilt would not likely have assuaged his fears.  Petitioner additionally suggests that the student was physically intimidated by the assistant principal; however, this argument is not supported by any evidence in the record.  Therefore, I find that the student admitted his guilt to the charged conduct, and that this constituted competent and substantial evidence of the student’s guilt.  Given this conclusion, I need not address petitioner’s claims regarding the nature and quality of the other evidence adduced at the hearing regarding the student’s guilt.  Nevertheless, I note that, as reflected in the hearing officer’s thorough analysis, the video surveillance and the testimony of other students who observed the student and the victim isolated in the alcove generally corroborated the events which formed the basis of the student’s admissions of guilt.

Petitioner also raises a number of procedural challenges to the hearing process.  First, petitioner contends that the district failed to provide her with surveillance videos of the alcove prior to the suspension hearing.  At the outset, I note there is no right to discovery in a student disciplinary proceeding pursuant to Education Law §3214(3)(c) (Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723).  Specifically, petitioner does not have the right to compel respondent to “provide the student with a copy of the evidence it intends to rely on in advance of a disciplinary hearing conducted pursuant to Education Law §3214(3) ...” (Appeal of J.C. and P.C., 41 Ed Dept Rep 395, Decision No. 14,723; see also Appeal of A.B., 57 Ed Dept Rep, Decision No. 17,172).  Therefore, petitioner’s claim must be dismissed.

Nevertheless, I note that the record reflects that petitioner and her attorney were, in fact, afforded an opportunity to view the videotape in advance of the hearing.  According to the record, hearing counsel, petitioner and counsel for petitioner met on January 9.  At this meeting, hearing counsel provided petitioner and her counsel copies of all relevant documents and allowed them to view the surveillance video in its entirety.  The record reveals that petitioner and her counsel were subsequently invited to watch the video as many times as they wished, and that counsel for petitioner did not make any such additional request.  Therefore, even though petitioner did not have a right to view such evidence, the record reflects that she was, in fact, allowed to view such evidence in advance of the hearing.[3]

Petitioner also alleges that hearing counsel, who is an attorney with the same firm which represents respondent in this appeal, inappropriately engaged in an ex parte communication with the hearing officer.  Specifically, petitioner alleges that hearing counsel told employees of the district, in the presence of the hearing officer, that she had “figured out” counsel for petitioner’s strategy.  Counsel for petitioner was not present for this alleged comment but states that a friend of petitioner’s who attended the hearing related this comment to him.  Respondent denies these allegations in a sworn affidavit by hearing counsel.  While respondent submitted a sworn affidavit from hearing counsel denying the allegations, I note that petitioner did not submit a sworn statement by the friend who allegedly heard the statement.[4]  Therefore, I find that petitioner has not proven that hearing counsel made the comment and her claim must be dismissed.

However, even assuming, arguendo, that such an ex parte conversation occurred, there is insufficient evidence that such a conversation affected the hearing officer’s impartiality.  Counsel for petitioner has not explained how the alleged ex parte communication concerned the merits of the case or impugned the hearing officer’s impartiality, especially since the alleged comment was not directed at or toward the hearing officer.  Accordingly, even if I found that hearing counsel for the district made the alleged statement, petitioner has produced no evidence of bias or impartiality resulting therefrom and, on this record, I would not find that it violated petitioner or the student’s due process rights.

Petitioner also argues that the student did not admit to the charge of “insubordination” and that the evidence in the record does not support a finding of guilt on this charge.  The hearing officer framed this claim in terms of due process, reasoning that “the specificity required for criminal indictments is not warranted in school administrative proceedings” (quoting Bd. of Educ. of Monticello Cent. Sch. Dist. v. Comm’r of Educ., 91 NY2d 133).  However, it appears that petitioner is arguing, instead, that the student was not guilty of the specific charge of “insubordinate conduct.”  Respondent’s code of conduct includes the following as examples of insubordinate conduct: (1) failing to comply with the reasonable directives of teachers, school administrators, bus drivers or other school personnel in charge of students or otherwise demonstrating disrespect; (2) lateness for missing or leaving school without permission; and (3) skipping detention.  The record contains no evidence that the student engaged in any such type of behavior.  Therefore, I agree with petitioner that the record does not support a finding of guilt on the insubordination charge alone and, therefore, will expunge all references to that charge in the student’s record.

However, as noted above, the record supports a finding that the student touched a fellow student without her consent, which encompasses the other charges against him (i.e., conduct endangering the health, welfare, safety and/or morals to self and others; disorderly conduct; disruptive behavior; and violent behavior).  Therefore, the student’s admissions support a finding of guilt as to these charges, respondent’s failure to prove the insubordination charge notwithstanding (Appeal of a Student with a Disability, 49 Ed Dept Rep 161, Decision No. 15,986).

Finally, petitioner alleges that the student’s suspension was excessive.  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). 

Here, the student engaged in extremely inappropriate behavior.  While the student contested the district’s evidence at the hearing, I concur with the hearing officer’s thorough decision and find that the student and the friend propositioned the victim for sexual favors in an alcove located off of a school hallway.  Indeed, the record indicates that the student had physical, sexual contact with the victim.  Petitioner’s argument that the victim’s consent to some of this conduct absolves her son of any wrongdoing is misguided at best.  The hearing officer thoroughly reviewed the surveillance video of the incident and concluded:

[T]he touching that did take place was based on the condition that [the victim] would be allowed to leave the area.  Any physical contact after that point was thereby nonconsensual.  Further, [the victim’s] act of kissing [the student] was not by nature voluntary but was a submission.  Submission to another’s confinement does not become voluntary simply because one does not physically fight back.

I agree with respondent that the student’s conduct would be unacceptable in any setting, let alone a public school.  The record further reflects that, after rendering a finding of guilt, the hearing officer considered the student’s anecdotal record, which included a one-day in-school suspension for cell phone usage, and a two-day in-school suspension for a “minor physical altercation.”  Accordingly, I find that a 15-week suspension for the serious conduct at issue here was wholly appropriate under the circumstances (see Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of D.B., 45 id. 197, Decision No. 15,299).[5]

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent remove any reference to the charge of insubordination from the student’s record in accordance with the long-term suspension that is the subject of this decision.

END OF FILE

 

[1] At some point during this meeting, the assistant principal located another administrator and asked him to join the meeting.

 

[2] According to the record, all participants understood “neck” to refer to oral sex.

 

[3] Hearing counsel additionally states that she declined to provide counsel for petitioner a copy of the video, asserting that to do so would violate the district’s obligations under the federal Family Educational Rights and Privacy Act (“FERPA”). 

 

[4] Although the hearing officer’s decision refers to an affidavit by the friend, no such affidavit is contained in the record.

 

[5] Additionally, I do not find that the district’s failure to prove the charge of insubordination, in any way, merits a lesser penalty.