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Decision No. 17,395

Appeal of D.B. and A.B., on behalf of their son, from action of the Board of Education of the Guilderland Central School District regarding student discipline.

Decision No. 17,395

(May 29, 2018)

Smith Hoke, PLLC, attorneys for petitioners, John J. Hoke, Esq., of counsel

Honeywell Law Firm, PLLC, attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Guilderland Central School District (“respondent”) to permanently suspend their son (“the student”).  The appeal must be dismissed.

At the time of the events giving rise to this appeal, the student was a sophomore attending respondent’s high school.  On or about November 18, 2016, the student obtained the login information for another classmate’s (the “classmate”) email address.

On Monday November 21, 2016, at 6:52 pm, the student sent an email using the classmate’s email account to the high school assistant principal (the “bomb threat”).  The email read as follows:

I am going to bomb the school on Tuesday the 22nd[.]  I am giving warning to you as a caution to my fellow student [sic] but I just want to destroy the place that makes me the most unhappy and suicidal.  Do not attempt to disarm the bomb, as it is remotely controlled and if someone touches it it will go off.  I assure you that you will not be able to fine [sic] the device or the bomb as it is already in the school.  The quad area is your only clue.

The assistant principal subsequently forwarded the email to other district employees.  The police were contacted, and the assistant principal proceeded to the high school.  At the high school, the assistant principal examined the premises, including the quad area referenced in the email.  Later that evening, the assistant principal, district administrators and officers of the Guilderland Police Department swept the building between approximately 9:20pm to 10:50pm.  Nothing was found.

Also on the evening of November 21, 2016, a police officer with the Guilderland Police Department visited the classmate’s home and questioned her regarding the email.  After questioning the classmate, the officer concluded that she had not written the email.

The assistant principal spoke to the classmate on Tuesday, November 22, 2016.  When asked who may have impersonated her by using her email account, she indicated that she worked on a school project with student N.A., who may have overheard, or otherwise had access to, the password for her school email account.  As a result of the bomb threat, the school arranged to have two members of law enforcement guard the school during the school day on November 22, 2016.

Respondent’s schools were closed for the Thanksgiving holiday from Wednesday, November 23, 2016 through Friday, November 25, 2016.  During this time, the police continued to investigate the bomb threat.

On Tuesday, November 29, 2016, the principal and assistant principal received an email which had been sent by “gachome@airmail.cc” at 5:43 am.  The email bore the caption: “GUNS WILL BE FIRED IN GHS TUESDAY MORNING” (the “terrorist threat”).  The email read as follows:

Me and my team have secured plenty of firearms to massacure [sic] the students at GHS.  We know you will not take this email seriously but we figured it would add quite a bit of emotional damage to you, the administrators to find out you could have prevented a tragedy that makes comparable disasters look like a fight on the schoolyard.  Honestly, the lack of security and initiative at this school is incredible and I am confident that two police officers will not be sufficient to prevent the smuggling in of weapons and explosives.  They claim to do these so called ‘K-9 sweeps’ but honestly a long term timed detonation device paired with some vaccum sealed mylar will be perfectly concealed within the school.  The cowards will run and die, the few who try to stop us will go down as heros [sic] but still, die.  We will make our bloody mark in history today, and I am completely confident in your idiocy that you will not prevent our wrath.

Eric and Dylan will have nothing on us, and I hope they look down upon us in favor as we commit this act of cleansing.

The assistant principal and principal received this email shortly after it was sent and proceeded to the high school.  Officers from the Guilderland Police Department arrived, as well as employees of the Federal Bureau of Investigation (“FBI”) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). 

Because the school buses were already out for pick-up by the time the assistant principal and principal learned of the email, administrators decided to permit students to enter the school.  Administrators required students seeking to enter the building to undergo a full search of their jackets and belongings.  Also, with the assistance of law enforcement, administrators conducted a sweep of the building and utilized shelter-in-place procedures.

While the students were being searched, a student asked a district employee whether the gloves were “mylar proof.”  The employee reported this statement to the assistant principal, who recalled that the email had referenced mylar.  Law enforcement interviewed the student who had asked about mylar.  The interview of this student implicated another student, whose interview then implicated the student who is the subject of this appeal.

A lieutenant and officer with the Guilderland Police Department interviewed the student on the evening of November 29, 2016, at his and petitioners’ home.  The student admitted that he wrote both of the emails identified above.  When the officer asked the student why he had sent the second email, the student indicated that he “wanted to see a bigger response.”  The student completed a written statement detailing his involvement in the two incidents.

In a letter dated November 30, 2016, signed by the high school principal and the assistant principal, respondent imposed a five-day suspension based on the following charges: Misuse of Electronic Equipment, Bomb Threat and Other Disruptive Incidents.

In a letter also dated November 30, 2016, respondent’s superintendent informed petitioners that she intended to convene a long-term suspension hearing on December 5, 2016.  According to the record, the long-term suspension hearing was adjourned at the request of petitioners and their counsel.

A long-term suspension hearing, presided over by a hearing officer, was held on May 25, 2017.  In a written report and recommendation dated July 13, 2017, the hearing officer recommended that the student be permanently suspended from respondent’s district.

In a written decision dated July 21, 2017, the superintendent adopted the findings, recommendations, and reasoning of the hearing officer with respect to guilt and penalty.  Petitioners appealed this decision to respondent which, in a written decision dated August 30, 2017, denied petitioners’ appeal and upheld the decision of the superintendent.  This appeal ensued.  Petitioners’ request for interim relief was granted in part.[1]

Petitioners contend that the penalty of permanent suspension was excessive under the circumstances.  Petitioners stress that the student admitted his guilt, and that permanent suspension was inappropriate given the student’s age and limited disciplinary record.  Petitioners further argue that the student did not, and did not intend to, harm anyone as a result of his actions.  Petitioners further allege that two mental health professionals, a forensic psychologist who conducted a comprehensive psychological evaluation of the student and a licensed clinical social worker who interviewed the student as part of a court-ordered 30-day assessment at the LaSalle School testified that he has accepted responsibility for his actions and that he is “a very low risk to the school environment and has a low recidivist risk.”  Petitioners further argue that a second psychologist who did not testify at the hearing, but is currently treating the student, also believes that the student poses no danger to the district’s students, faculty and employees. 

Respondent contends that its decision to permanently suspend the student was appropriate under the circumstances.  Respondent acknowledges that permanent suspension is an extreme penalty that should only be imposed in the most serious of circumstances, but argues that such a penalty is appropriate because the student engaged in a pattern of “callous, deceitful behavior” without regard to the impact on others that escalated into an incident that amounted to an act of terror.  Respondent further argues that the student’s conduct not only completely disrupted the educational process, but also “caused an extremely serious and negative emotional impact of fear on staff and students.”  Thus, respondent argues, on this record the student poses a threat to the district’s students and staff, making permanent suspension an appropriate penalty.

Before reaching the merits, I must address a procedural issue.  Respondent objects to petitioners’ submission of an affidavit executed by the student’s treating psychologist, and the allegations relating thereto, because they were not part of the hearing record before respondent.  Education Law §3214(3)(c)(1) requires that the board of education “shall make its decision solely upon the record before it.”  Therefore, in an appeal of respondent’s determination, I cannot consider exhibits or other evidence that were not part of the record before the hearing officer and the board of education (see Appeal of R.C., 49 Ed Dept Rep 275; Decision No. 16,023; Appeal of N.V., 46 id. 138, Decision No. 15,466).  As respondent argues, allowing submission of the instant affidavit for the first time on appeal would deprive respondent of any opportunity to cross-examine that witness.  Therefore, I have not considered the affidavit of the treating psychologist or petitioners’ allegations relating to the observations and opinions of the treating psychologist, in reaching my determination.

Turning to the merits, 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).   A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances, such as where the student exhibits “an alarming disregard for the safety of others” and where it is necessary to safeguard the well-being of other students (Appeal of K.G., 51 Ed Dept Rep, Decision No. 16,262; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of L.T., 44 id. 89, Decision No. 15,107).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

In assessing the appropriateness of the penalty imposed by respondent, it is necessary to consider the entire course of conduct in which the student engaged, as well as two incidents contained in his anecdotal record which were appropriately considered by the hearing officer.[2]  First, the student’s anecdotal record references an incident from May 2015, which resulted in a two-day suspension, in which the student and others generated a “fake [T]witter account that contained ‘harassing’ pictures of an 8th grade student.”  The summary of this incident also states:

The pictures have the Nazi [s]ymbol over the face of the student, ‘mocks’ the Jewish religion and had the KKK hood over the faces of some people.  In addition, the victim’s home phone was posted.  The [accused] students attempted to blame another 8th grade student for this behavior.

According to the student’s anecdotal record, the student admitted that he created this account “and conspired to place the blame on another student.”

Additionally, the student’s anecdotal record revealed that in June 2016, he received a five-day suspension for receiving a teacher’s password, sharing this password with another student, and logging into the teacher’s account without authorization.

Five months later, the student again gained unauthorized access to another individual’s email account -this time, that of a classmate.  As described above, the student impersonated the classmate and used an e-mail account to send a bomb threat to the assistant principal.  The bomb threat caused substantial disruption to respondent and district administrators.  The assistant principal, administrators, and officers of the Guilderland Police Department conducted a full sweep of the school, and two police officers were posted at Guilderland High School the following day. 

The student’s conduct on November 21, 2016 was unacceptable and, in and of itself, warranted a substantial penalty.  In this respect, I note that the Commissioner has upheld significant penalties for students who were found, by competent and substantial evidence, to have made bomb threats (see e.g. Appeal of M.H., 45 Ed Dept Rep 42, Decision No. 15,254; Appeal of David and Cynthia L., 40 id. 297, Decision No. 14,484).  Additionally, the student’s impersonation of the classmate caused harm to the classmate and her family.  The assistant principal testified that, when the classmate returned to school the day after the bomb threat and ensuing visit from police, she was “visibly upset” and her parents “were also very upset and alarmed.”  As the assistant principal explained, the classmate’s parents were concerned as to whether the classmate had been targeted and, if so, why.  I further note that the student’s impersonation of the classmate could be considered criminal conduct.  The Penal Law defines criminal impersonation, a Class A misdemeanor, as “[i]mpersonat[ing] another by ...  electronic means with intent to ... injure ... another ...” (Penal Law §190.25).[3]

Seven days later, the student sent the terrorist threat quoted above.  The student sent the email using a generic email address and utilized a proxy server to, by his own admission, disguise his identity so that investigators could not determine who sent the email.

The principal aptly characterized the language of the terrorist threat as horrifying.  A Guilderland police officer testified at the hearing that it was the most serious threat he has encountered in his 16 years of law enforcement experience.  The officer specifically testified that the “specificity and the language” of the email was “[v]ery” concerning, and that it made him concerned for the safety of the students at Guilderland High School.  Indeed, the threat was deemed sufficiently credible to warrant contacting the FBI and the ATF, which participated in the investigation.  As a result of his conduct, the student faced criminal charges and pled guilty to the attempted making of a terroristic threat, which is a Class E felony under the Penal Law (Penal Law §§110.05, 490.20).[4]

Petitioners offer several arguments as to why expulsion is not appropriate in this case.  First, petitioners contend that because the student has already faced criminal charges for his conduct, he should be afforded leniency in connection with his educational career.  Petitioners cite no authority for this proposition, and I decline to adopt such a rule.  The criminal justice system and the public schools are separate institutions, and each is independently entitled to address a wrong committed within its respective sphere.

Petitioners also argue, based on the testimony of the two mental health professionals offered at the hearing, that there is a low risk that the student would repeat his misconduct and cause harm to the school community.  The first evaluator, a forensic psychologist, conducted a psychological evaluation of the student twice, once in December 2016, and again in March 2017, following a 30-day in-patient stay at the LaSalle School, which had been ordered by the Family Court. 

In the first evaluation, the evaluator described the student “as emotionally detached as well as emotionally immature with a sense of invincibility.”  In this regard, the student indicated that, after sending the terrorist threat, he now understood that “a lot of people were scared” but he “didn’t know that would happen.”  The student additionally stated that he thought that “only the Guilderland police would get involved” in response to the terrorist threat.  The student further admitted to the evaluator that he had visited a website called “tour blackmarket” which is “a site where one can buy weapons and/or marijuana.”  The student admitted to visiting this website over a dozen times.  The evaluator further found that the student presented with significant anxiety.  However, the evaluator also found that the student accepted “full culpability” for sending the bomb and terrorist threats.

The forensic psychologist further testified that, by March 2017, the student “had gained insight into his behaviors” and “fully comprehended the enormity of his behavior and the collateral damage to other people.”  She concluded that the student would benefit from treatment in anger management, but recommended against permanent suspension of the student because, in her view, the student held a low risk of recidivism.  On cross-examination, the psychologist acknowledged that she saw an escalating pattern of behavior by the student from June 2016 to November 2016 which became more serious as it progressed.  She further testified that she was not aware that the student had also been suspended in eighth grade for generating a false Twitter account that contained harassing images of another student.  She indicated that she would have liked to have had an opportunity to discuss that earlier incident with the student, but could not render a professional opinion on the relevance of that incident without having done so.  She then appeared to discount the earlier incident because it did not result in criminal charges, though she subsequently stated that a risk assessment would not be based solely on criminality. The psychologist further testified at the hearing that, if the student “were to have to be home schooled” this would “be psychologically damaging to a child who already had an anxiety issue with interpersonal relationships.”

The licensed clinical social worker at the LaSalle School also evaluated the student on a weekly basis during his 30-day placement at the LaSalle School.  She testified that the student exhibited no behavioral incidents during his tenure at the LaSalle School and refrained from acting out in response to harassment by fellow students. She testified that it was her understanding that the student was referred to the LaSalle School because, on two separate occasions, he had made threats of violence toward his school via the internet, but indicated on cross-examination that she did not review a detailed copy of the student’s prior disciplinary history.  The social worker recommended outpatient treatment for the student, including counseling, and opined that the student was not a risk to engage in additional threats.

Neither evaluator analyzed the bomb or terrorist threats in any detail, attributing them to, in the psychologist’s words, “adolescent egocentrism” or “adolescent invincibility.”  The psychologist further testified that the student “didn’t understand the consequences and the impact of his behavior,” which is “[n]ot totally unusual for a 15-year-old boy.”  However, this glosses over the obvious point that most students do not engage in the graphic threats which gave rise to this appeal.  While the evaluators may have been justified in their analysis of the student’s conduct within the context of their respective fields, I am unwilling to dismiss such conduct within the context of my oversight of the public education system. 

Petitioners further argue that the student did not possess firearms at the time of the incidents and had no intention of carrying out a school shooting.  This is irrelevant, however, since on this record the student sent two emails with the intent to generate a serious response from school administrators and law enforcement, and these individuals had no way of knowing that the student did not intend to commit violent acts.  I find that the district and law enforcement personnel reasonably deemed the email a credible threat based upon, as a lieutenant with the Guilderland Police Department testified, the “sophistication” of the threat, including its “language ... relating to hiding bombs with mylar” and the sender’s “[k]nowledge of explosive devices.”   Moreover, it is extremely troubling that the student told the forensic psychologist that he had visited a website on multiple occasions where weapons and marijuana could be purchased. Tragically, school shootings are far from theoretical events; our nation is beset by an epidemic of such shootings.  Armed assailants continue to commit mass murders in public schools.  Simply put, the district had no choice but to treat this situation seriously, and it is imperative that school officials retain the ability to protect their students and staff.[5]

Petitioners argue that the Commissioner has only upheld permanent suspensions “where the safety of the school community is at risk,” and that no such risk was present here.  It is true, as petitioners argue, that prior decisions of the Commissioner upholding permanent suspensions have generally involved physical harm to the safety and security of other students (Appeal of Dale C., 40 Ed Dept Rep 70, Decision No. 14,423 [appeal seeking student’s ability to take final exams dismissed as moot but noting that permanent suspension would have been upheld where student’s actions caused a fire resulting in at least $100,000 worth of damage and endangering 655 students who were forced to evacuate the building]; Appeal of McNamara, 37 id. 326, Decision No. 13,871 [permanent suspension upheld where student and others broke into high school with hammer and tools to turn off the boilers and disrupt the electrical system]; Appeal of Sole, 34 id. 270, Decision No. 13,305 [dismissing appeal as untimely but noting that permanent suspension would have been upheld for highly dangerous cafeteria food fight, student’s rude and dismissive attitude, and lengthy anecdotal record]).  However, the reasoning of those appeals was not dependent upon the physical nature of the harm.  Instead, the inquiry in all such appeals is whether the student has demonstrated “an alarming disregard for the safety of others” and whether permanent suspension is necessary to safeguard the well-being of other students (see e.g. Appeal of K.G., 51 Ed Dept Rep, Decision No. 16,262, Appeal of Henry, 34 id. 470, Decision No. 13,385).  Under this standard, I find that the student’s conduct evinced an alarming disregard for the safety of others, and that respondent justifiably deemed permanent suspension necessary under such circumstances to safeguard the well-being of its students.

This is not a case involving a single isolated incident but, rather, a pattern of misconduct by the student that escalated to a very serious incident involving a terrorist threat. I agree with the hearing officer’s conclusion that the student’s behavior establishes a pattern of blatant deception and a willingness to blame others to make it appear as if others were responsible for his actions.  On review of this record, including the student’s prior disciplinary history, a picture emerges of a student who has a sophisticated knowledge of technology and has repeatedly and surreptitiously applied that knowledge to engage in misconduct using the passwords and email accounts of others.  Moreover, the student was found to have anger management issues and admits that he repeatedly accessed a website where weapons may be purchased.  

The hearing officer found, despite the testimony of the two mental health professionals, that the student’s actions exhibited a clear lack of remorse toward the harm he caused to the classmate specifically, and to all students and staff of the district generally.  The hearing officer was in the best position to assess the credibility of the student, and it is well-settled that 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 T.S., 57 Ed Dept Rep, Decision No. 17,233; Appeal of C.S., 48 id. 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909).  No such evidence exists in the record.  The hearing officer carefully considered the opinions of the two expert witnesses and concluded that they were not persuasive as to the risk of harm to other students if this student returned to school.  Neither expert witness had the student’s complete disciplinary record before them and, therefore, did not consider the May 2015 incident involving a fake Twitter account in conducting their evaluations.  Additionally, as respondent pointed out in its determination, the two evaluations were conducted over a short period of time based on information provided by the student.

On this record, I agree with respondent that the student has engaged in “an ongoing escalation of behavior exhibiting careful planning and execution which showed no reasonable basis of ending in the future.”  The bomb threats contained in the two emails were extremely specific and graphically threatening.      I am most disturbed by the fact that the student explained to police that he wrote the terrorist threat to “get a bigger response.”  While the student argues on appeal that he hoped to merely achieve the cancellation of school or a greater police response, the student’s explanations reveal an acute lack of awareness of the terror which his email instilled in students and administrators. 

I also concur with the hearing officer’s finding, adopted by the superintendent and respondent, that the student has not fully accepted his responsibility for his conduct.  At the hearing, the student claimed that another student was solely responsible for the language of the terrorist threat.  This is inconsistent with the student’s written statement to the Guilderland Police Department, in which he stated: “I wrote another bomb threat” and “I wrote the threat and read it out loud” to two other students.  While the student also said in this statement that the other student “kept telling [him] things to put in it,” this does not exonerate the student from responsibility for sending the email containing the terror threat. 

As the superintendent stated in her written decision, she is “charged with the safety and protection of all students and staff under [her] care.”  Viewing the record as a whole, I decline to overturn respondent’s determination that permanent suspension was warranted, given respondent’s need to safeguard the well-being of its students.  I cannot conclude with any degree of confidence that this student’s pattern of misbehavior, which at the very least would warrant a penalty measured in years, would not continue and cause harm to other students should he return to the district.

Finally, like the hearing officer, I am sympathetic to petitioners’ situation.  It is clear from the record that petitioners are caring parents who are committed to the well-being and education of their son.  However, like the superintendent and respondent, I, too, bear a responsibility to ensure the safety of the students of respondent’s district and, indeed, all students throughout the State of New York.  Children trust that their parents, teachers and administrators will keep them safe.  I fully understand the negative impact that a permanent suspension will have on this student, but under the circumstances of this appeal, I agree with respondent that the need to protect the well-being of other students of the district is of paramount and overriding importance.     

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] While petitioners’ request that the student be permitted to attend school during the pendency of this appeal was not granted, respondent was directed to provide the student “with an alternative program of instruction in accordance with Board Policy 5313.3-R” pending an ultimate determination of the instant appeal.

 

[2] Petitioners did not contest the student’s guilt as to the charged conduct either at the hearing or on appeal.

 

[3] I express no opinion as to whether the student could or should have been prosecuted according to this standard; I have referenced this section of the Penal Law merely to demonstrate the seriousness with which the law treats impersonating another person.

 

[4] The underlying crime of making a terroristic threat is a Class D felony (Penal Law §490.20).

 

[5] I additionally note that, with specific respect to the student’s intent or capability to carry out the terrorist threat, Penal Law §490.20, which appears to be the provision to which the student pled guilty, states that it “shall be no defense to a prosecution pursuant to this section that the defendant did not have the intent or capability of committing the specified offense” (Penal Law §490.20[2]).