Decision No. 17,551
Appeal of J.D. and J.D., on behalf of their son C.D., from action of the Board of Education of the East Irondequoit Central School District regarding student discipline.
Decision No. 17,551
(December 13, 2018)
Empire Justice Center, attorneys for petitioners, Sujata Ramaiah, Jonathan Feldman, and Maggie Robb, Esqs., of counsel
Ferrara, Fiorenza, P.C., attorneys for respondent, Catherine E. M. Muskin, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the East Irondequoit Central School District (“respondent”) to discipline their son (the “student”). The appeal must be dismissed.
The student attended respondent’s high school during the 2017-2018 school year when the events relevant to this appeal occurred. During the school day on April 20, 2018, district staff received reports that students were selling and purchasing marijuana brownies in one of the high school bathrooms. The district’s security supervisor investigated these reports. As part of his investigation, the security supervisor reviewed surveillance videos of the hallway outside the ninth-grade bathrooms. At one point, the security supervisor observed the student entering the bathroom followed by another student who had previously been identified as a seller of marijuana brownies (the “seller”).
The security supervisor interviewed the student later in the day on April 20, 2018. According to respondent, the student initially denied purchasing a marijuana brownie. However, after the security supervisor told the student that the local police were at the school investigating these incidents, the student admitted that he had bought the marijuana brownie that morning in the bathroom from the seller for $15. The student also stated to the security supervisor that he had consumed the entire brownie. The record contains a written statement which the student generated during this interaction.
One of the brownies that was purchased from the seller was tested by the local police department on April 20, 2018 and tested positive for delta-9-Tetrahydrocannabinol; i.e., THC.
Based on the student’s conduct, the high school principal suspended the student for five days and referred the matter to the superintendent for consideration of a long-term suspension. By letter dated April 24, 2018, the superintendent informed petitioners that a hearing would be held on April 27, 2018 to consider a long-term suspension of the student.
Prior to the hearing date, the principal offered petitioners and the student an agreement (the “waiver”) whereby, in exchange for petitioners forgoing their statutory right to a long-term suspension hearing, respondent would agree to suspend the student for 24 days and permit him to return to school on May 29, 2018. Petitioners chose not to sign the waiver and the hearing proceeded on April 27, 2018. In an undated decision, the hearing officer noted that the student pled not guilty and found that “[b]ased on the testimony received and evidence entered,” the district failed to produce “competent and substantial evidence” of the student’s guilt. By letter dated May 1, 2018, the superintendent declined to adopt the hearing officer’s recommendations and found the student guilty of the charged conduct. The superintendent imposed a suspension through May 29, 2018 and indicated that the student could return to school on May 21, 2018 if he met several conditions identified in the letter.
Petitioners appealed the superintendent’s determination to respondent on May 7, 2018. By letter dated June 13, 2018, the board overturned and expunged the student’s short-term suspension but upheld the superintendent’s long-term suspension. Respondent also modified the long-term suspension by “permanently seal[ing]” the student’s disciplinary record regarding the April 20, 2018 incident unless he was “found guilty of a violation of the [code of conduct] provisions relating to possession, use, consumption of drugs, or alcohol during the remainder of his high school career.” This appeal ensued.
Petitioners argue that the student’s long-term suspension should be expunged on several grounds. Petitioners contend that respondent failed to meet its burden of proving that the student committed the charged offense by competent and substantial evidence. Petitioners further contend that respondent denied petitioners and the student their right to cross-examine complaining witnesses. Petitioners also argue that respondent improperly drew a negative inference against the student based upon the fact that he did not testify and that the testimony of the security supervisor was not credible. Petitioners further complain that respondent did not explicitly address a toxicology report submitted by petitioners in its written decision and that “upon information and belief” respondent did not view a security video in deciding petitioners’ appeal. Petitioners further contend that the student’s conduct was “step 3” conduct as defined by respondent’s code of conduct and, thus, could not be the subject of a long-term suspension hearing. Petitioners also argue that respondent delayed rendering its decision until after the student’s suspension had been served, and that respondent has a practice of such deferrals. Petitioners also claim that respondent has a “policy and practice” of placing conditions on students who are accused of drug offenses and that this violates the Education Law. Petitioners further argue that respondent’s process of offering “waivers” to students who wish to agree to a suspension in lieu of a long-term suspension hearing is impermissible. For relief, petitioners seek expungement of the student’s long-term suspension and a determination that respondent’s “waiver” and “early return agreements” are illegal.
Respondent asserts that petitioners have failed to meet their burden of proving their claims, that the student received appropriate due process in the disciplinary matter, that the petition sets forth new allegations not presented on appeal below, that respondent’s waivers do not violate the Education Law, and that the penalty imposed upon the student was proportionate to the conduct for which he was found guilty.
First, I must address several procedural issues. Petitioners submitted a reply which contains new allegations. 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Respondent also objects to certain statements contained in petitioners’ memorandum of law. A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799). Therefore, I have not considered statements and arguments which have been raised for the first time in petitioners’ memorandum of law.
Petitioners also seeks to raise new claims which they did not raise before respondent; specifically, that the transcript of the hearing is “incomplete and inaccurate” because it does not reflect the student’s attempt to challenge the security supervisor’s testimony and petitioners’ silencing of such attempts and that the student’s suspension was excessive. The record contains a copy of petitioners’ written appeal to respondent, which did not raise these claims. Therefore, petitioner cannot now raise this objection in an appeal pursuant to Education Law §310 (see Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of S.Z. and K.Z., 52 id., Decision No. 16,384).
Turning to the merits, 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 M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).
Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).
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.E., 57 Ed Dept Rep, Decision No. 17,267).
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).
Here, the district established the student’s guilt at the hearing through competent and substantial evidence; namely, the student’s written admission. At the hearing, the district submitted, and the hearing officer accepted into evidence, a written statement from the student in which he stated that he purchased the brownie from another student in the bathroom on the day in question and that he ingested it. Petitioners suggest in their memorandum of law that this admission was the product of “intimidation and coercion.” However, petitioners have produced no evidence to support this claim and do not explain how the security supervisor coerced the student into falsely admitting his guilt (see Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268). As was his right, the student did not testify at the hearing. Therefore, there was no testimony from the student, the only other party to the interaction with the security supervisor, concerning the alleged coercion. To the extent petitioners suggest that the student was afraid of being arrested, the student’s allegedly false admission of guilt was more likely to cause his arrest than a protestation of innocence (see Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268). Therefore, I find that the student admitted his guilt in the written statement and that this constitutes competent and substantial evidence of his guilt.
Even if the student had not admitted his guilt, the record contains other competent and substantial evidence which establishes his guilt. The security supervisor testified at the hearing that the student admitted his guilt to him. Similarly, an assistant principal testified that he encountered the student in the counseling center shortly after the incident with the security supervisor. The assistant principal had been informed earlier that the student admitted to consuming a marijuana brownie. The assistant principal then asked the student if he wanted him to accompany him to the nurse, and the student said: “No, no. I feel okay. I took it a while ago.” While petitioners contend that the security supervisor was not a credible witness, they do not contest the veracity of the assistant principal. Therefore, respondent produced competent and substantial evidence that the student was guilty of the charged conduct.
Petitioners pose several other arguments on appeal that they claim warrant expungement of the student’s long-term suspension. First, petitioners assert that respondent denied the student due process because it did not allow petitioners or their counsel to attend the executive session at which the student’s appeal was considered. Although statutory provisions do not preclude the presentation of arguments to a board of education on appeal of a suspension determination, there is no requirement which would have required respondent to permit petitioners to present arguments in person before it considered the student’s appeal in executive session; nor is there any requirement that petitioners be allowed to attend such executive session. Accordingly, I find that the record indicates that the board properly based its determination on the record before it (Appeal of R.F. and D.F., 52 Ed Dept Rep, Decision No. 16,369).
Petitioners also appear to argue that, because the superintendent attended the executive session, this constituted an improper ex parte communication. In this regard, petitioners cite Brown v. Bd. of Educ. of Rochester City Sch. Dist. (2005 WL 17838 [WDNY Jan. 4, 2005] [“Brown”]). In Brown, the court granted a parent’s motion for a preliminary injunction where a school district permanently expelled her son without a hearing based on the parent’s “waiver” of the opportunity for such a hearing. The court noted the evidence presented “a fair ground for litigation” with regard to the adequacy of the notices and forms provided by the district to the parent and the student’s father regarding requesting or waiving a hearing. The court also noted that the district denied the mother’s request that she and her attorney be present at an executive session of the board during which their appeal of her son’s expulsion was considered, although the school district’s attorneys attended the executive session. The court did not reach a decision as to the permissibility of this arrangement, concluding that it “need not decide that issue at this juncture.” However, the court noted in dicta that “the seemingly ex parte nature of the meeting raises enough concerns to present serious questions going to the merits of plaintiffs’ claims (emphasis in original).”
While I recognize, as did the court in Brown, that such situations may present the possibility of an impermissible ex parte communication, on the record before me I cannot conclude that any such impermissible communication occurred in the instant appeal. The superintendent admits in an affidavit that she attended the board meeting on May 22, 2018 when petitioners’ appeal was considered. Counsel for respondent indicates in an affidavit that respondent “considered the record on appeal as it was before the [s]uperintendent” in rendering its decision. While I cannot find that the superintendent’s presence was prejudicial in this instance (see e.g. Appeal of M.P., 44 Ed Dept Rep 132, Decision No. 15,123), I caution respondent to take appropriate steps to avoid any appearance of impropriety.
Next, petitioners contend that respondent has a policy and practice of impermissibly delaying resolution of student disciplinary appeals until the students have served their suspensions. Petitioners have produced no evidence in support of this claim and it is dismissed. To the extent petitioners suggest that respondent impermissibly delayed issuance of its decision in the instant matter, this claim, too, is without merit. The superintendent’s decision was rendered on May 1, 2018. Petitioners were notified that respondent would review the appeal at its May 22, 2018 meeting, and that a decision would be rendered at respondent’s June 12, 2018 meeting. While respondent may not have acted as quickly as petitioners would have liked, I cannot find that respondent’s actions caused any prejudice to petitioners or the student. Indeed, even where a board of education has failed to meet its own policy or regulation regarding timelines for issuance of appeals, I have held that this is not a basis to sustain an appeal of the underlying decision (Appeal of a Student with a Disability, 49 Ed Dept Rep 466, Decision No. 16,083; Appeal of L.Z., 46 id. 518, Decision No. 15,581).
Petitioners also argue that they were denied the right to cross-examine complaining witnesses at the hearing. As discussed above, the student made a written statement in which he admitted his guilt. I note in this regard that petitioners appear to conflate their right to cross-examine witnesses at a long-term suspension hearing with their right to question complaining witnesses at an informal conference in connection with a short-term suspension. Pursuant to Education Law §3214(3)(c)(1), before a student is suspended for more than five days (i.e., a long-term suspension), he or she has a right to a fair hearing that includes the right to question witnesses against the student. The right to question “complaining witnesses,” by contrast, pertains to informal conferences which may be held in connection with short-term suspensions. Here, petitioners were allowed to question each witness produced by the district at the long-term suspension hearing and petitioners received all of the process which they were due
pursuant to Education Law §3214(3)(c)(1).
Petitioners further suggest that they were denied an opportunity to subpoena witnesses, and that the district unreasonably refused to identify student witnesses who implicated the student. Petitioners’ claim in this respect is without merit. The Commissioner has previously held that there is no authority supporting a right to discovery in a long-term suspension hearing (see Appeal of A.B., 57 Ed Dept Rep, Decision No. 17,172; Appeal of J.C. and P.C., 41 id. 395, Decision No. 14,723). Thus, petitioners had no right to compel the district to identify or produce witnesses, or to introduce certain evidence into the record. With respect to subpoenas, the record reflects that petitioners requested that the hearing officer issue subpoenas at approximately 5:00 p.m. on the day before the hearing, and that the hearing officer offered to adjourn the hearing if petitioners wished to have the hearing officer sign the subpoenas. Petitioners then continued to participate in the hearing and did not raise the issue again. Under these circumstances, the record supports a finding that petitioners chose to proceed with the hearing instead of adjourning in order to have the subpoenas issued. Therefore, petitioners have failed to carry their burden of proof with respect to this claim.
Petitioners also suggest that the district’s failure to produce the student witnesses was fatal to its case, citing Appeal of Johnson (34 Ed Dept Rep 62, Decision No. 13,234). Petitioners’ reliance upon Appeal of Johnson (34 Ed Dept Rep 62, Decision No. 13,234) is misplaced because, in that case, the district did not call any witnesses who had direct knowledge of the incident in question. Here, as explained above, respondent introduced the student’s written admission as well as testimony from witnesses with first-hand knowledge of the underlying events. Therefore, this claim, too, is without merit.
Petitioners further contend that the student’s conduct would be categorized as a “step 3” offense according to respondent’s code of conduct, and that a student whose first offense is a step 3 offense cannot be subject to a long-term suspension hearing. As proof, petitioners submit two pages of respondent’s code of conduct describing step 3 and level 4 offenses. Even assuming that the purchase and consumption of a marijuana brownie would constitute a “step 3” offense, petitioners have failed to prove that respondent was precluded from seeking a long-term suspension of the student for his conduct. The excerpt from respondent’s code of conduct merely states that step 3 offenses “most frequently can be handled by the disciplinary mechanism in the school” and that “[c]orrective measures that the school should undertake ... depend on the extent of the school’s resources for remediating the situation in the best interest of all students.” This statement does not indicate that the district is categorically precluded from imposing a long-term suspension for step 3, or indeed any, conduct. Therefore, petitioners have failed to prove that respondent’s code of conduct precluded it from pursuing a long-term suspension here even if, as petitioners suggest, the student’s conduct was a step 3 offense.
Petitioners also object to respondent’s offer of a set period of suspension if petitioners waived their right to a long-term suspension hearing. This claim is not relevant to the instant appeal as petitioners rejected respondent’s proposed waiver and, instead, exercised their right to a long-term suspension hearing pursuant to Education Law §3214. Thus, petitioners essentially seek an advisory opinion as to the permissibility of the waiver, and it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899). I note, however, that previous Commissioner’s decisions have recognized that under certain conditions, parents may waive a student’s due process rights under Education Law §3214 (Appeal of T.B., 52 Ed Dept Rep, Decision No. 16,385; Appeal of A.S. and S.K., 44 id. 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818; Appeal of a Student Suspected of Having a Disability, 41 id. 390, Decision No. 14,722). For such a waiver to be valid, however, it must be “voluntary, knowing and intelligent” (Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976). The district must provide the student and parents with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818). Thus, petitioners’ suggestion that respondent’s offering a waiver to parents is a per se violation of the Education Law is contrary to well-settled authority.
To the extent petitioners suggest that the district could not condition an early return to school upon the student’s completion of certain activities, including counseling, this claim must be dismissed as moot (see Appeal of B.L.G., 50 Ed Dept Rep, Decision No. 16,101 [finding issue of early return to school moot as student had served his suspension, but noting in dicta that student’s eligibility to apply for an early return to school if he engaged in private counseling and participated in a threat assessment by the district did not violate Education Law §3214]). 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). While it is unclear from the record whether the student served the full suspension or returned early, it is undisputed that he has served his entire suspension. Thus, any claim concerning the circumstances under which the student would return has been rendered academic (Appeal of M.S., 44 Ed Dept Rep 478, Decision No. 15,237).
Finally, petitioners argue that the long-term suspension of the student was excessive. As noted above, this argument was not presented to respondent and, thus, cannot now be raised in a subsequent appeal pursuant to Education Law §310 (see Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of S.Z. and K.Z., 52 id., Decision No. 16,384). Nevertheless, I note that 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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909). In prior appeals, the Commissioner has upheld longer penalties for students who admitted to, or were found guilty by competent and substantial evidence of, possession of marijuana (see Appeal of J.C., 46 Ed Dept Rep 562, Decision No. 15,596 [eight-month suspension upheld for possession of marijuana]; Appeal of Uebel, 38 id. 375, Decision No. 14,058 [35-day suspension upheld for possession and smoking of marijuana]). Additionally, the fact that other students involved in similar conduct as the student may have received different or lesser penalties, or no disciplinary measures at all, does not, in and of itself, provide a basis for nullifying the discipline imposed on the student who is being suspended (Application of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,111; Appeal of R.Y., 49 id. 336, Decision No. 16,046).
I have considered petitioners’ remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 According to respondent, THC is the “principal active component of cannabis, which triggers a positive identification for the illegal drug marijuana.”
 Even assuming, arguendo, that the argument regarding the transcript had been presented to respondent, petitioners do not assert that the student was testifying or was engaged in cross-examination when he interjected. Therefore, it does not appear that any such interjections were permissible, let along germane to the issues presented at the hearing.
 There is no evidence in the record to support petitioners’ suggestion that respondent drew a negative inference against the student based upon his failure to testify at the hearing.
 At the hearing, petitioners argued that because the student’s written confession did not use the words “marijuana brownie” and only referred to the purchase and consumption of “it,” this does not prove that the student purchased and consumed a marijuana brownie. Given the evidence in the record concerning the circumstances under which the written statement was made, it strains credulity to argue that the student was referring to anything other than the marijuana brownie in his written statement.
 To the extent petitioners argue that the hearing officer found the security supervisor not credible and that respondent should have deferred to this judgment, the hearing officer’s decision is bereft of any credibility findings or, indeed, any reasoning. After a lengthy summary of the testimony adduced at the hearing, the hearing officer merely found that there was no “competent and substantial evidence” that the student committed the charged conduct “[b]ased on the testimony and the evidence entered.” The superintendent owed no deference to this determination and it was well within her discretion to reject the hearing officer’s recommendations.
 To the extent petitioners complain that they were not allowed to question complaining witnesses in connection with the short-term suspension, this claim is moot as respondent has expunged all reference to the short-term suspension from the student’s record.