Decision No. 17,343
Appeal of L.D., on behalf of her son R.W., from action of the Board of Education of the City School District of the City of Syracuse regarding student discipline.
Decision No. 17,343
(March 13, 2018)
Legal Services of Central New York, attorneys for petitioner, Susan M. Young, Esq., of counsel
Ferrara Fiorenza P.C., attorneys for respondent, Heather Cole, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Syracuse (“respondent”) to impose discipline on her son, R.W. (“the student”). The appeal must be dismissed.
During the 2015-2016 school year, the student attended high school within respondent’s district. On November 24, 2015, the student, as well as three other students, physically attacked another student (the “victim”). On November 24, 2015, the high school principal suspended the student for five days. In this letter, the principal indicated that the student and three other students attacked the victim by hitting him from behind and beating him to the ground. The letter indicated that the victim received “swelling around his face, eyes, leg and arms.”
In a letter to petitioner dated November 30, 2015, the superintendent informed her that a long-term suspension hearing would be held on December 4, 2015 based on the student’s participation in the November 24, 2015 altercation. In this letter, the superintendent asserted that the student was charged with “attack on a student with serious bodily injury” in violation of respondent’s code of conduct when he “attacked another male student, hit him from behind and beat him to the ground....” The letter also indicated that, if found guilty of the charged conduct, the student’s disciplinary record would be considered during the penalty phase of the hearing.
On December 4, 2015, the hearing convened as scheduled. The hearing was presided over by a hearing officer and attended by the student, petitioner, a lay advocate for the student, the vice principal, and the district’s director of student discipline.
In a written decision dated December 7, 2015, the superintendent found the student guilty of the charged conduct and suspended the student for the remainder of the 2015-2016 school year. Petitioner appealed the superintendent’s decision to respondent in a written appeal dated December 14, 2015. On January 12, 2016, counsel for petitioner submitted a supplemental statement to respondent for its consideration in connection with petitioner’s appeal. In a letter dated February 12, 2016, respondent indicated that it had upheld the superintendent’s determination with respect to guilt and penalty on February 10, 2016. This appeal ensued.
Petitioner claims that although the student was involved in the altercation, he was not guilty of the charged conduct because he did not directly cause any serious bodily injury to the victim. Petitioner also argues that the penalty was excessive based upon the student’s limited role in the incident as well as the fact that his anecdotal record revealed only relatively minor incidents such as tardiness and leaving class. Petitioner requests that the district’s finding of guilt be annulled and the student’s record expunged or, in the alternative, that the charge be reduced to a “more appropriate charge for the offense,” such as “attack on student with injury” or “two or more persons intentionally attacking a student with injury.”
Respondent asserts that the student admitted his guilt to the charged conduct, which constitutes competent and substantial evidence of his guilt. Respondent further argues that, the student’s admission notwithstanding, the district nevertheless proved the student’s guilt as to the charge of “attack on a student with serious bodily injury with or without provocation” at the hearing. Respondent also argues that the penalty it imposed was appropriate because the charge against the student is defined by the code of conduct as a level 4 offense for which long-term or permanent suspension may be appropriate. Respondent additionally contends that the penalty was appropriate and in conformity with its code of conduct.
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).
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).
Turning first to the issue of guilt, although petitioner argues on appeal that the student denied the specific charge of “attack with serious bodily injury” at the hearing, such contention is not supported by the hearing record. At the outset of the hearing, the hearing officer stated: “let me read the charge and the allegation directly from [the November 30, 2015] letter.” After reading the charge, the hearing officer asked the student: “[d]o you admit or deny that that occurred?” The student responded: “I admit but I did have a reason.” 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). Based on the above statement, I find that the student admitted his guilt. Although the student also asserted that his conduct was justifiable under the circumstances, this does not negate his admission of guilt in this case (see Appeal of D.F and N.F., 56 Ed Dept Rep, Decision No. 17,026). Therefore, I find that the student admitted his guilt as to the charged conduct and that this constituted competent and substantial evidence of such guilt.
Even assuming, arguendo, that the student did not admit to the conduct as charged, the hearing record contains other competent and substantial evidence sufficient to uphold a finding of guilt. The vice principal witnessed the incident and testified that she saw the student physically assault the victim. The district also introduced security camera footage which captured the beginning of the incident. The vice principal viewed the footage at the hearing and identified the student in the video clip. Had the student not admitted his guilt, I would find that this evidence, in and of itself, constituted competent and substantial evidence of the student’s guilt.
The student’s argument that his conduct was justified is without merit. The student testified at the hearing that, three minutes prior to the attack, the victim “said [he] could beat” the student and “pushed” the student. Rather than avoiding additional conflict, however, the student testified that he responded by “pursu[ing]” and physically assaulting the victim, causing severe injuries. Even if the record established that the victim’s alleged actions instigated this dispute, which it does not, that cannot be used to justify or excuse intentional, violent conduct such as the acts committed by the student herein (see Appeal of D.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026).
Petitioner also challenges the student’s approximately seven-month suspension as 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 S.U., 57 Ed Dept Rep, Decision No. 17,159; Appeal of F.W., 48 id. 399, Decision No. 15,897). Here, security camera footage shows the student and three other students aggressively pursuing and beating the victim. The victim’s injuries were so severe that, according to the record, the student needed to be placed in a wheelchair to receive medical assistance. The victim was seen thereafter by the school nurse, who reported the victim suffered a supraorbital contusion, experienced pain in his jaw and had difficulty opening his mouth. Physical violence in public schools should not be tolerated, and the superintendent was well within her discretion to impose a suspension of approximately seven months given the seriousness of the student’s conduct (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,110). Indeed, relevant provisions of respondent’s code of conduct indicate that a “long term or permanent suspension” is appropriate for the specific conduct in which the student engaged. Therefore, I do not find the penalty imposed to be excessive.
In conclusion, based on the record begore me, I cannot conclude that a seven-month suspension for the serious conduct in which the student engaged – physically attacking another student - is so excessive as to warrant the substitution of my judgment for that of respondent. Accordingly, the appeal must be dismissed.
THE APPEAL IS DISMISSED.
END OF FILE
 While the superintendent’s decision references the hearing officer’s “findings of fact,” the record does not indicate whether the hearing officer rendered a recommendation as to penalty. I remind respondent that a hearing officer is obligated, pursuant to Education Law §3214(3)(c)(1), to make “recommendations as to the appropriate measure of discipline” to be imposed following a long-term suspension hearing (see Appeal of G.B. and B.B., 52 Ed Dept Rep, Decision No. 16,383).
 In light of this finding, I need not address the parties’ arguments as to whether the student’s conduct satisfied the language of the charge (i.e. whether the student’s conduct caused “serious bodily injury”).
 Although petitioner contended in her pro se appeal to respondent that she “did not receive prior notice of the contents of an anecdotal record,” petitioner does not pursue this argument on appeal.
 I find this penalty appropriate irrespective of the student’s anecdotal record; thus, I need not address petitioner’s argument that the student deserved a more lenient penalty because his anecdotal record revealed only minor infractions and did not contain “any violent behavior.”