Decision No. 17,617
Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the Monticello Central School District regarding student discipline.
Decision No. 17,617
(April 11, 2019)
Guercio & Guercio LLP, attorneys for respondent, Frank G. Barile, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Monticello Central School District (“respondent”) to impose discipline upon her son (“the student”). The appeal must be dismissed.
At all times relevant to this appeal, the student attended respondent’s high school. On September 20, 2018, district officials learned of a threat posted using a social media application which stated: “I am going to shoot up Monticello High School, Middle school/ elementary on 9/21/18 get ready!” (“the posting”). The local police investigated the posting, and this investigation implicated the student. Upon questioning by police, the student admitted that he sent the posting. According to a police report generated in connection with the investigation, the student further stated that “he made it as a joke and never intended to hurt anybody.” The student was arrested and, according to the record, charged with making a terroristic threat, a class D felony (see Penal Law §490.20).
In a letter dated September 26, 2018, respondent’s superintendent informed petitioner that the district would conduct a long-term suspension hearing based upon the student’s conduct in transmitting the posting on September 21, 2018. The superintendent separated the charges against the student into five specifications. Each alleged that the student “engaged in conduct that [was] disorderly and/or violent, and/or endangered the safety, morals, health or welfare of others” and stated that he did so in the following respects:
Specification 1: When he posted a threat to social media that stated, “I am going to shoot up Monticello High School, Middle school/ elementary on 9/21/18 get ready!”, or words to that effect, which created or would foreseeably create a risk of substantial disruption to the school environment.
Specification 2: When he engaged in communication off school property where the content of such communication can reasonably be interpreted as a threat to commit an act of violence on school property.
Specification 3: When he created a hostile environment by conduct and/or threats, intimidation, and or abuse that would reasonably cause or would reasonably be expected to cause members of the school community to fear for their physical safety.
Specification 4: When he threatened to use a weapon to “shoot up” the schools of the Monticello Central School District.
Specification 5: When he engaged in a willful act which disrupted the normal operation of the school community.
The long-term suspension hearing convened on September 28, 2018. Petitioner, the student, the high school assistant principal, and the assistant superintendent for school administration, who served as the hearing officer, attended. At the beginning of the hearing, the student admitted his guilt as to specifications 1, 2, and 4 and pled not guilty to specifications 3 and 5. The district then introduced exhibits and called the assistant principal as a witness. At the conclusion of the hearing, the hearing officer found the student guilty of all five specifications based upon the evidence in the record.
In a written recommendation dated October 1, 2018, the hearing officer recommended that, as he had found at the hearing, the student be found guilty of all five specifications. The hearing officer also recommended a suspension of one calendar year. The superintendent adopted the findings and recommendations of the hearing officer. Petitioner appealed the superintendent’s determination to respondent, which upheld the superintendent’s determination. This appeal ensued.
Petitioner argues that the student was deprived of his “right to an impartial decision-maker and due process” because “[s]chool officials had already found [the student] guilty prior to giving him a fair opportunity to present his full defense” at the hearing. Petitioner further alleges that the district did not produce competent and substantial evidence “to establish all charges” against the student, and that “[s]ome of the charges presented ... were solely based on assumption.” Petitioner further contends that the penalty imposed was excessive, arguing that the student has already been subjected to punishment in the criminal justice system. Petitioner seeks an order permitting the student to return to school and complete “[r]estitution to the school in the form of community service,” presumably in lieu of further suspension.
Respondent denies that it predetermined the student’s guilt and argues that it introduced competent and substantial evidence at the hearing which supports a finding of guilt on each of the five specifications. Respondent further argues that it imposed an appropriate penalty in this case and that the Commissioner lacks jurisdiction to impose community service as a disciplinary penalty.
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).
First, petitioner’s arguments that district officials predetermined the student’s guilt or did not afford her or the student due process are without merit. According to the record, petitioner received advance written notice of the long-term suspension hearing. This written notice informed petitioner of her rights in connection with the hearing, including her right to be represented by an attorney if she so chose.
At the hearing, the hearing officer explained the purpose of the hearing and petitioner and her son’s rights thereto. The hearing officer then read each specification aloud and asked the student whether he pled guilty or not guilty to each specification. After the student pled guilty to charges 1, 2, and 4 and pled not guilty to charges 3 and 5, the district introduced documentary and testimonial evidence in support of its case. Based upon this evidence, the hearing officer found the student guilty of each of the five specifications. Petitioner does not explain how the hearing officer, or anyone else, denied her and her son due process in connection with the long-term suspension hearing. Therefore, on this record, petitioner has not met her burden of proving that respondent violated petitioner’s right to a fair hearing pursuant to Education Law §3214(c)(1).
In the petition, petitioner makes a conclusory assertion that unnamed “[s]chool officials” predetermined the result of the hearing. However, petitioner has provided no evidence to support such claim. The district was seeking a long-term suspension of the student based on the conduct with which he was charged. Thus, the fact that district officials convened a hearing to determine whether the student was guilty of the charged conduct with which he was charged was neither problematic nor remarkable. Any claim of improper “predetermination” could only lie against those who rendered decisions concerning the student’s long-term suspension; namely, the hearing officer, superintendent, and respondent. Petitioner has not met her burden of proving any bias on the part of these individuals or respondent by merely suggesting that unnamed “[s]chool officials” predetermined the student’s guilt.
Petitioner further alleges that, on the day of the hearing, the assistant principal offered a set period of suspension for the student if petitioner waived her right to a long-term suspension hearing. Subject to certain conditions, a parent may waive his or her right to a hearing under Education Law §3214 (Appeal of R.F., 52 Ed Dept Rep, Decision No. 16, 370; 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). Because such a waiver is permissible, the fact that the assistant principal inquired as to petitioner’s willingness to enter into such an agreement was not improper. Petitioner provides no explanation of how or why the assistant principal’s offer of a waiver agreement demonstrated that school officials had impermissibly predetermined the student’s guilt.
In any event, I note that the hearing officer, who was the initial decision-maker, attests in his affidavit that he had no knowledge of the proposed waiver agreement prior to the hearing, and that it would not have influenced him if he had. Thus, petitioner has not proven that the hearing officer had prior knowledge of the event underlying the suspension and that, even if he had, that alone would not violate the student’s due process rights. Due process is not violated unless a hearing officer, with prior knowledge of an underlying event, allows this prior knowledge to improperly influence his or her decision or uses his or her prior knowledge as a basis for a decision instead of the evidence presented during the hearing (Appeal of G.B. and B.B., 52 Ed Dept Rep, Decision No. 16,383; Appeal of Aldith L., 39 id. 291, Decision No. 14,241; Appeal of Meredith, 33 id. 530, Decision No. 13,138). On this record, petitioner has made no such showing; the mere fact that the hearing officer, after considering the student’s anecdotal record and petitioner’s contentions relating to the penalty, adopted the same penalty which the assistant principal offered in the waiver agreement does not establish that the hearing officer predetermined the outcome of the hearing rather than making a determination based on the evidence in the record. Therefore, petitioner has not met her burden of proving that respondent violated petitioner’s right to a fair hearing pursuant to Education Law §3214(c)(1).
In any event, I note that the student pled guilty to specifications 1, 2, and 4 at the long-term suspension hearing. 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). Therefore, the student’s admission constitutes competent and substantial evidence as to specifications 1, 2, and 4.
The language and scope of the specifications to which the student admitted his guilt substantially overlap with specifications 3 and 5. Thus, the student’s admission of guilt as to specifications 1, 2, and 4 constitute an admission by the student that he engaged in conduct that was disorderly, and/or violent and/or endangered the safety, morals, health and welfare of others when he made the threat, off school property, to use a weapon to ”shoot up” the Monticello schools, “which created or would foreseeably create a risk of substantial disruption of the school environment.” Specification 3 differs from the misconduct to which the student admitted only to the extent that it alleges that the student created a hostile environment that would reasonably cause, or be expected to cause, members of the school community to fear for their physical safety. Specification 5 differs from the admitted misconduct only to the extent that it alleges that the student engaged in a willful act which disrupted the normal operation of the school community. Petitioner alleges in the petition that respondent produced “no relevant evidence showing that [the student] poses as a continuing danger or threat of disruption” and that “some of the charges presented against [the student] were solely based on assumption.” The petition contains no specific allegations that the hearing officer erred in finding her son guilty of specifications 3 and 5, or that the district failed to produce competent and substantial evidence in support of these specifications. Petitioner offers no evidence or argument beyond the conclusory statements quoted above.
Respondent argues that the evidence in the record supports a finding of guilt on specifications 3 and 5, relying on the testimony of the assistant principal. The assistant principal testified that, on September 21, 2018 the student’s threat caused respondent to close all five of its school buildings and a neighboring school district to cancel its homecoming events. She further testified that, in a fire drill several days after the incident, several students expressed fear for their safety as well as concern that a violent incident was taking place. Petitioner provides no evidence to contradict the assistant principal’s testimony, which was directly relevant to specifications 3 and 5 and not based on “assumption” as alleged by petitioner. Therefore, based on the testimony adduced at the hearing, petitioner has failed to meet her burden of proving that respondent erred in finding her son guilty of specifications 3 and 5.
Petitioner further alleges that the student’s suspension was excessive and requests an order admitting him to respondent’s schools. 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).
Here, I cannot find that a suspension of one calendar year warrants the substitution of my judgment for that of respondent. The student’s conduct was completely unacceptable and warranted a substantial penalty. Moreover, as the assistant principal testified at the hearing, the student’s comment caused substantial disruption within respondent’s district as well as a neighboring school district. The student’s comment caused respondent to close all five of its school buildings for an entire day and caused a neighboring school district to cancel its homecoming events. The assistant principal further indicated that, during an unannounced fire drill several days after the threat, several students expressed fear that the drill was related to a real emergency due to the student’s posting.
Petitioner nevertheless argues that the student intended the posting as a joke and that this supports a reduced penalty. Regardless of whether the student intended the conduct as a joke, the extremely serious subject matter of the student’s comments, particularly in this climate in which our nation is beset by an epidemic of school shootings, cannot be tolerated (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515; Appeal of P.K., 41 id. 421, Decision No. 14,733). Violence and threats of violence, even if intended as jokes, have no place in our schools.
Moreover, the district admitted the student’s anecdotal record into evidence, which revealed over a dozen incidents including numerous instances of lateness, truancy and horseplay during the 2016-2017 and 2017-2018 school years. The anecdotal record was appropriately entered into the record only after the hearing officer determined the student’s guilt, and respondent was entitled to consider, and rely upon, such anecdotal record in reaching its determination regarding penalty.
Petitioner also suggests that the student should not face any educational consequences for his actions because the student has already faced criminal charges for his conduct. Petitioner cites 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 (see Appeal of D.B. and A.B., 57 Ed Dept Rep, Decision No. 17,395).
Finally, because I find no basis on this record upon which to substitute my judgment for that of respondent with respect to penalty, it is unnecessary to consider petitioner’s request for “[r]estitution to the school in the form of community service.” It appears that petitioner seeks such relief in lieu of further suspension. However, upon review of a board of education’s penalty determination under Education Law §3214, the test applied by the Commissioner is whether the penalty is so excessive as to warrant substitution of the Commissioner’s judgment (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of A.L. and H.L., 56 id., Decision No. 17,089; Appeal of B.M., 48 id. 441, Decision No. 15,909, Mirenburg v. Mills, et al.; Supreme Court, Albany County; Judgment granted dismissing petition; November 27, 2009). Absent a finding that the penalty was excessive, there would be no basis for substituting my judgment for that of petitioner. Moreover, the relief sought by petitioner – substituting community service for out-of-school suspension — could not be granted because a board of education has no authority to impose community service as a penalty under Education Law §3214 (Appeal of J.C. and J.C., 57 Ed Dept Rep, Decision No. 17,407; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of R.M. and L.M., 43 id. 155, Decision No. 14,951; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899).
Given this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner alleges that the principal verbally informed her on September 24, 2018 that her son was being immediately suspended for five days. Respondent admits such allegation and asserts that the principal informed petitioner that she would be receiving written notice of the five-day suspension later that day. Petitioner does not raise any challenges pertaining to the student’s exclusion from school prior to the conclusion of the long-term suspension hearing and has not requested expungement or any other relief relating to the short-term suspension.
 Petitioner also requests “an evaluation to determine if [the student] has [a] learning disability.” In its answer, respondent indicates that, after this appeal was commenced, the student was referred to its Committee on Special Education (“CSE”) for evaluation. Accordingly, petitioner’s request for referral to the CSE, which is outside of my jurisdiction in an appeal pursuant to Education Law §310 in any event, has been rendered moot (see Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 537, Decision No. 14,088; Appeal of a Student Suspected of Having a Disability, 37 id. 565, Decision No. 13,928).
 Moreover, even assuming, arguendo, that respondent failed to produce competent and substantial evidence of the student’s guilt as to charges 3 and 5, I would still decline to substitute my judgment for that of respondent with respect to the penalty imposed by respondent for the reasons stated below.