Appeal of S.K., on behalf of her son C.K., from action of the Board of Education of the Longwood Central School District regarding student discipline.

Decision No. 17,824

(March 16, 2020)

John N. Russo, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Steven Goodstadt, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Longwood Central School District (“respondent”) to impose discipline upon her son (“C.K.”).  The appeal must be sustained.

At all times relevant to this appeal, C.K. attended respondent’s junior high school.  In a letter dated January 19, 2018, the principal of the junior high school suspended C.K. for five days for “[i]nterfer[ing] with the safe, healthy, and orderly environment” of the school “by attempting to facilitate the distribution of illegal substances.”  This letter further indicated that the school district would hold a hearing to determine whether to impose a long-term suspension for C.K.’s conduct.

In an undated letter, respondent’s superintendent indicated that a long-term suspension hearing would be convened on January 25, 2018 with respect to the charge of “attempting to facilitate the distribution of illegal substances.”  The parties agreed to adjourn the hearing on numerous occasions.  Ultimately, the hearing commenced on August 29, 2018.  At the hearing, C.K. pled not guilty to the charge against him.  The district introduced testimonial evidence from the principal and the assistant principal of the junior high school.

The assistant principal testified that, on January 17, 2018, a teacher reported a suspicious interaction between two students — namely, that a student had allegedly handed an item to another student in a stairwell.  The assistant principal indicated that he identified one of the students involved in the interaction (“student one”) after reviewing security camera footage.  The assistant principal recounted that, when he questioned student one in his office, student one produced what he represented to be “four grams” of marijuana as well as $153 in cash.  According to the assistant principal, student one stated that he had purchased the marijuana from the other student in the stairwell (“student two”).

The assistant principal testified that, when he questioned student two, student two admitted that he sold the marijuana to student one.  The assistant principal further indicated that a search of student two’s person revealed what student two represented to be another four grams of marijuana, $253 in cash, and a substance in a plastic bag that student two identified as “LSD.”  The hearing officer admitted into evidence photographs of the items recovered from student two.

When asked what student two told him “concerning C.K.’s involvement,” the assistant principal stated that student two claimed that he had acquired the LSD through “a situation involving C.K.,” whereby “C.K. ordered the THC ... and had [it] delivered to a house next to him.”[1]  When asked to clarify whether student two had stated that C.K. ordered THC or LSD, the assistant principal testified that C.K. “ordered LSD” and told student two “to pick that up from the mailbox, bring it to school and bring it to [another student (“student three”)] in exchange for THC,” which the assistant principal later described as “THC oil.”

The principal also testified that he questioned student three about the arrangement.  He stated that student three told him that she had communicated with C.K. via social media – specifically, Snapchat – and that “the conversations went back and forth relating to if she wanted LSD.”  According to the principal, “[t]he correspondence [between C.K. and student three] continued to her giving him [THC] oil ... and she agreed to do that – the transaction of LSD for [THC] oil.”  The principal stated that the students intended student three to keep the LSD and C.K. to acquire the THC oil.

The principal further testified that he interviewed C.K., who “confirmed ... that he was friends with [s]tudent [t]wo.”  According to the principal, C.K. initially “indicated that [s]tudent [t]hree and him had made contact” via Snapchat.  The principal alleged that, “[a]s the conversation continued with more specifics,” however, C.K. “recanted” and “stated that he didn’t know who” student three was after the principal “identified her by name.”  The principal confirmed that a search of C.K.’s person did not reveal any contraband.  The principal additionally indicated that he did not view the messages allegedly exchanged between student three and C.K. via Snapchat, as the messages were not preserved or recorded.

At the conclusion of the district’s evidence concerning guilt, the hearing officer found C.K. guilty of the charge against him.  On the issue of penalty, the district introduced evidence and testimony regarding C.K.’s anecdotal record, after which the hearing officer recommended that C.K. be suspended through the 2018-2019 school year.

In a decision dated September 18, 2018, the superintendent adopted the hearing officer’s recommendations as to guilt and penalty.  Petitioner appealed this decision to respondent.  In a letter dated October 19, 2018, respondent upheld the superintendent’s determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 3, 2018.

Petitioner contends that the charge against C.K. was not a charge for which the district could properly suspend C.K. pursuant to Education Law §3214.  Specifically, petitioner submits that C.K. was charged with “attempt to facilitate” an “inchoate offense” that is beyond the scope of Education Law §3214.  Petitioner further argues that, even if the district could have suspended C.K. for such a charge, the district failed to prove C.K.’s guilt through competent and substantial evidence.  Petitioner asserts that the district’s evidence was uncorroborated and consisted solely of hearsay statements.  Petitioner further contends that C.K. was denied an opportunity to question witnesses at the hearing – namely, student two and student three – and that C.K.’s suspension was excessive.  For relief, petitioner requests that the finding of guilt against C.K. be overturned, that he be “immediately reinstate[d]” to school, and that “any and all disciplinary action” resulting therefrom be expunged from his record.[2]

Respondent contends that the charge against C.K. was a permissible ground for suspension under Education Law §3214; that the district produced competent and substantial evidence of C.K.’s guilt; that the hearing officer afforded C.K. all process which he was due during the hearing; and that the penalty imposed was “proportionate to the severity of the misconduct.”

To the extent petitioner challenges the imposition of the student’s suspension, the appeal 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 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).  The record indicates that the student’s suspension ended at the conclusion of the 2018-2019 school year, thereby rendering petitioner’s request to “immediately reinstate” C.K. moot.  However, petitioner also requests that the student’s suspension be expunged from the student’s record.  Therefore, to the extent petitioner seeks expungement, these claims remain live (Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of D.O., 53 id., Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

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 contends that the charge against C.K. was not a charge for which the district could suspend him pursuant to Education Law §3214.  Education Law §3214(3)(a) authorizes the suspension of a student “who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.”  According to petitioner, Education Law §3214 “clearly mandates a resultant outcome,” and the district failed to satisfy this requirement insofar as C.K. was charged with attempting to facilitate the distribution of illegal substances.  Contrary to petitioner’s contention, Education Law §3214 does not require that a student’s conduct result in actual harm to serve as grounds for suspension.  Rather, the statute dictates that a student may be suspended for conduct that “endangers the safety, morals, health or welfare of others,” and endangerment implicates merely a risk of harm (see e.g. People v Chrysler, 85 NY2d 413).

Additionally, petitioner’s argument that the charges are facially invalid because they do not allege “the required ‘interference with the safe, healthy and orderly environment of the School’” is without merit.  Petitioner appears to have derived the quoted language from Howard v Clark (59 Misc2d 327), which involved a prior version of Education Law §3214.[3]  To the extent petitioner suggests that respondent may not discipline the student for off-campus conduct, this too is without merit (see e.g. Coghlan v. Bd. of Educ. of Liverpool Cent. Sch. Dist., 262 AD2d 949 [board of education “acted within its discretion in suspending petitioner’s son for his unlawful and threatening conduct, which occurred off school property while school was not in session”]; Howard v Clark, 59 Misc2d 327 [finding charges against student insufficient but stating that “the use of heroin by students off the high school premises bears a reasonable relation to and may endanger the health, safety and morals of other students ....”]).  Accordingly, based on the broad language of Education Law §3214, I find that “attempting to facilitate the distribution of illegal substances” is conduct that endangers the health, safety, morals or welfare of others within the scope of Education Law §3214, and that the district could permissibly suspend C.K. for such conduct.

Petitioner next claims that C.K. was denied the right to “confront” witnesses at the hearing because students two and three were not produced as witnesses.[4]  Petitioner appears to conflate her right to cross-examine witnesses at a long-term suspension hearing with her right to question complaining witnesses at an informal conference with the principal 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, petitioner and C.K. were allowed to question each witness produced by the district at the long-term suspension hearing.  Thus, they received all of the process which they were due pursuant to Education Law §3214(3)(c)(1) (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652; Appeal of J.D. and J.D., 58 id., Decision No. 17,551).[5]  Although petitioner complains that she was not permitted to cross-examine students two and three, the district chose not to call these students as witnesses and, thus, petitioner had no right to cross-examine them.

Moreover, to the extent petitioner complains that the district did not call students two and three as witnesses, 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, petitioner had no right to compel the district to identify or produce witnesses, or to introduce certain evidence into the record (Appeal of J.D. and J.D., 58 id., Decision No. 17,551).  Rather, petitioner’s remedy would be to request that the hearing be adjourned to issue a subpoena for the attendance of students two and three, as expressly authorized by Education Law §3214(3)(c)(1) (see e.g. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652).

Next, petitioner contends that the district failed to prove the student’s guilt through competent and substantial evidence.  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).  The Court of Appeals has described the substantial evidence standard as “proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably – probatively and logically” (300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 NY2d 176; see Appeal of J.J., 46 Ed Dept Rep 270, Decision No. 15,505; Appeal of Wallen, 33 id. 313, Decision No. 13,060).

As a preliminary matter, respondent argues that the hearing officer found the principal and assistant principal to be credible witnesses, and that I should not disturb this determination.  With respect to findings of fact in matters involving the credibility of witnesses, 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).  In his determination, the hearing officer found the testimony of the principal and assistant principal to be credible.  Thus, to the extent the principal and assistant principal offered direct testimony concerning facts known to them, I have accepted such testimony.[6]

Nevertheless, on this record, I find that the district failed to meet its burden of establishing C.K.’s guilt through competent and substantial evidence.  C.K. denied the charge against him; thus, it was incumbent upon the district to prove his guilt.  The district produced no physical evidence connecting C.K. with an actual or proposed drug transaction.  Indeed, as indicated above, a search of C.K.’s person on January 17, 2018 produced no relevant evidence.  Moreover, the alleged conversation between C.K. and student three concerning a proposed drug transaction took place via Snapchat and the district did not submit any physical or electronic record of such conversation.[7]

The only probative evidence concerning C.K.’s guilt came from hearsay statements offered by students two and three.  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).  However, I cannot afford any significant weight to the hearsay statements of students two and three because, as explained below, such statements are ambiguous and internally inconsistent.

No witness, through direct or hearsay testimony, presented a consistent explanation of the proposed drug transaction(s) among the students.  According to student two, C.K. procured LSD for student two and subsequently instructed student two to trade the LSD to student three for THC oil.  However, the testimony of student three suggests that C.K. and student three “agree[d] to” a direct “transaction of LSD for cannabis oil.”  The principal’s testimony on this point, which is not entirely clear, is reproduced below:

A. ... [T]he conversations went back and forth relating to if [student three] wanted LSD, and they had correspondence about LSD.  The correspondence continued to [student three] giving [C.K.] a cannabis oil, as she referred to it, and [student three] agreed to do that – the transaction of LSD for cannabis oil.

Q    And in terms of the communication, was it Snapchat between [C.]K. and Student Number Three?

A.   Correct.

Q.   And it was a proposed exchange of LSD for cannabis oil?

A.   Correct.

Q.   With the LSD going to whom, please?

A.   LSD coming to her [i.e., student three].

Q.   And what would go back to ... C.K.?

A.   Cannabis oil.

Significantly, at no point did the principal testify that student three told him that student two would serve as a middleman for the transaction between her and C.K.

Moreover, although the students allegedly implicated C.K. in organizing a trade of LSD for THC oil, none of the students searched during the investigation possessed THC oil.  Instead, students one and two were in possession of what they alleged to be marijuana, and student two additionally possessed a substance that he alleged to be LSD.  Furthermore, students one and two possessed large sums of money, suggesting that they were engaged in the sale and purchase of drugs, rather than a trade of one drug for another, as allegedly facilitated by C.K.

With respect to the substance student two identified as LSD, the district did not introduce any evidence at the hearing proving that the substance was, in fact, LSD.  Indeed, counsel for petitioner objected to the assistant principal’s identification of the recovered substance as LSD, arguing that such identification was “based upon the unsubstantiated allegations of a 13-year-old kid.”  The hearing officer nevertheless admitted the assistant principal’s testimony on the limited basis that it constituted evidence of “what ... student [two] told the ... assistant principal.”  There is no evidence that the superintendent or respondent recognized this evidentiary distinction in finding C.K. guilty of the charge against him.

Therefore, I find that respondent has not proven, through competent and substantial evidence, that the student engaged in the charged conduct.  Both the short-term and long-term suspensions were predicated upon a single charge which, as explained above, was not supported by the evidence in the record.  Therefore, under these circumstances, both the student’s short-term and long-term suspensions must be expunged (see Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438; Appeal of L.L., 48 id. 197, Decision No. 15,835 [Supreme Court, Albany County; Transferred to Appellate Division, Third Department; August 18, 2009; Decision and order granting application to withdraw; September 2, 2010]).

In light of this disposition, it is unnecessary to consider the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent annul and expunge from C.K.’s record all references to C.K.’s suspension between January 19, 2018 and June 30, 2019 in accordance with this decision.

END OF FILE