Appeal of D.S., on behalf of his son M.S., from action of the Board of Education of the Harborfields Central School District regarding student discipline.

Decision No. 17,835

(April 27, 2020)

Law Offices of Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Harborfields Central School District (“respondent”) to impose discipline on his son, M.S. (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student attended respondent’s middle school.  According to an affidavit from the principal of the middle school (“principal”) on March 21, 2019, it was reported to the principal that M.S. made threatening and inappropriate comments.  The affidavit indicates it was represented to the principal that the student said “Yeah mass murder” and said “Hitler” repeatedly while the class discussed a Jewish holiday in science class.  On March 25, 2019 the principal interviewed five students regarding the incident.  Three of the students reported to the principal that M.S. was talking about Hitler and two of the students reported hearing M.S. state “Yeah mass murder.”

On March 22, 2019 M.S.’s Social Studies teacher also reported to the principal that M.S. had disrupted class by  yelling and slamming his books.  According to respondent, the student engaged in this behavior because he was unable to access the internet and believed that he would not be able to obtain information needed for a class project.[1]

In a letter dated March 25, 2019, the principal proposed a suspension of the student for three days for incidents that occurred on March 21 and 22 which included “making inappropriate comments towards a student and [engaging in] inappropriate behavior and comments towards staff and students.”  This letter informed petitioner of his right to an informal conference with the principal and to question complaining witnesses.  Petitioner requested an informal conference, which was conducted on March 26, 2019.  Following the informal conference, the principal hand-delivered a letter dated March 26, 2019 to petitioner that stated that the student would be suspended for three school days.[2]

In an e-mail dated March 26, 2019, petitioner appealed this suspension to the superintendent.[3]  By letter dated March 29, 2019, the superintendent denied petitioner’s appeal and upheld the determination of the principal.  Petitioner then appealed the superintendent’s decision to respondent by e-mail on April 4, 2019.  On April 10, 2019, respondent reviewed petitioner’s appeal during executive session.  At a special meeting on April 17, 2019, respondent voted unanimously to deny petitioner’s appeal and notified petitioner of its decision by letter dated April 18, 2019.  This appeal ensued.

Petitioner contends that the student did not violate respondent’s code of conduct and maintains that the three-day suspension from school violated “discipline regulations” and is inconsistent with respondent’s code of conduct because there was no progressive discipline.  Petitioner maintains that the student has been assaulted and bullied on numerous occasions since fourth grade, but that no students were ever suspended for such incidents.  Petitioner further contends that respondent’s suspension was arbitrary and capricious, arguing that the decision to suspend M.S. was based on favoritism and influence from the board president.  Petitioner specifically asserts that the principal based his decision on information provided by the board president’s child, who attends the middle school and attends class with M.S.  For relief, petitioner requests that the suspension be expunged from M.S.’s record and that the board president be admonished.

Respondent argues that the appeal should be dismissed as moot, for failure to establish a clear legal right to the requested relief, and for failure to join necessary parties.  Respondent contends that the district complied with its code of conduct, Education Law §3214, and section 100.2(l) of the Commissioner’s regulations in imposing the short-term suspension at issue in this appeal.  Respondent also contends that the district applied an appropriate penalty under the circumstances, that its determination was based upon competent and substantial evidence, and that the district imposed discipline upon the student in a prompt and fair manner.  Respondent further contends that petitioner’s allegations regarding prior disciplinary action are irrelevant and that petitioner’s allegations with respect to the board president are speculative.

Respondent argues that the appeal is 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).  Since the record indicates that the student served the suspension in March 2019, any challenge to the suspension itself is moot.  However, petitioner requests that the suspension be expunged from the student’s record.  Therefore, to the extent petitioner seeks expungement, these claims remain live (Appeal of M.R.-U., 58 Ed Dept Rep, Decision No. 17,581; Appeal of C.B.R., 57 id., Decision No. 17,211; Appeal of D.O., 53 id., Decision No. 16,543).

Moreover to the extent petitioner requests that I issue an order admonishing the board president for this action, there is no provision in the Education Law that authorizes the censure or reprimand of a board of education or its members  by the Commissioner of Education (see Appeal of Sutton, 55 Ed Dept Rep, Decision No. 16,855; Appeal of Coleman, et al., 42 id. 256, Decision No. 14,845; Appeal of Kozak, 39 id. 278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251).[4]

Even if the appeal were not dismissed on the grounds described above, the appeal would be dismissed on the merits.  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).

Regarding the incident reported on March 21, 2019, in an email dated March 25, 2019 the student admitted to respondent that he made statements about Hitler during a discussion about the Jewish holiday.  M.S. also stated that he did not recall saying “yay mass murder,” but that, if he did, it was “an extremely poorly timed sarcastic comment.”  With respect to the incident reported on March 22, 2019, petitioner concedes that such conduct was “not acceptable” in an email dated March 27, 2019 but again contends that the conduct did not warrant a suspension.  Petitioner does not dispute that M.S. engaged in the alleged conduct on appeal, but merely argues that M.S.’s comments were taken out of context and that M.S. merely made factual statements.  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).  Thus, although petitioner and the student suggest that the student’s comments were sarcastic or taken out of context, whether the student intended the conduct as a joke is irrelevant to a finding of guilt on the charges against him (see Saad-El-Din v. Steiner, 101 AD3d 73; Cuff v. Valley Cent. Sch. Dist., 677 F3d 109; Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515; Appeal of R.T. and S.T., 53 id., Decision No. 16,581).  The student’s intent in making the statements with which he was charged, or there existed other mitigating circumstances, could only be relevant to the issue of the excessiveness of the penalty (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652).

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, the student’s comments on March 21, 2019 and his behavior on March 22, 2019 were inappropriate.  Although petitioner suggests that the comments of March 21, 2019 were taken out of context, he produces no evidence in support of such contention, such as an affidavit from the student  Petitioner does not even address the March 22, 2019 incident in the petition or argue that the student’s behavior on that date was appropriate.  Therefore, based on the record before me, I cannot conclude that a three-day suspension for the alleged conduct involved in this case is so excessive as to warrant the substitution of my judgment for that of respondent (see Appeal of N.C., 57 Ed Dept Rep, Decision No. 17,417 [three month suspension upheld for several inappropriate comments, including racially insensitive and inappropriate remarks and comments about a student’s sexual orientation]; Appeal of J.E., 57 id., Decision No. 17,267 [two and one-half month suspension upheld for displaying an inappropriate comment on a sign and insubordination]).

Additionally, the fact that respondent’s code of conduct recommends progressive discipline does not preclude respondent from imposing a three-day suspension for the alleged conduct involved in this case.  Indeed, I note that respondent’s code of conduct uses qualifying language in this regard, stating that discipline should be progressive “[d]epending upon the nature of the violation,” and that a student’s first violation “should ordinarily merit a lighter penalty than subsequent violations” (cf. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,519 [code of conduct did not prescribe “maximum” penalties for particular conduct based upon, among other reasons, qualifying language in the code]).

Petitioner also makes a general contention that respondent violated “discipline regulations by suspending [his son] from school.”  However, petitioner has failed to allege which specific provision(s) of the Commissioner’s regulations were violated and has failed to establish that respondent violated any specific provisions of such regulations.  The record reflects that petitioner received a notice of short-term suspension that apprised him of his rights to an informal conference and to question complaining witnesses and that petitioner, in fact, participated in such a conference.  In this respect, although petitioner alleges that he “was unaware that the complainant was the [child] of the school board president” when he participated in the informal conference, the notice of suspension informed petitioner that he had the right “to ask questions of the complaining witness(es).”  Having been so apprised, it was incumbent upon petitioner to request the identity of any complaining witnesses and, if so desired, to question such witnesses at the informal conference (see Appeal of F.H. and S.H., 48 Ed Dept Rep 308, Decision No 15,869).  Accordingly, petitioner has not carried his burden of proving that respondent violated the Commissioner’s regulations.

Finally, petitioner argues that because the board president’s child was a witness to the alleged conduct, it was inappropriate for him to vote on petitioner’s appeal to respondent.  Even assuming, arguendo, that the board president’s vote presented an appearance of impropriety, any error would be harmless under the circumstances because respondent voted to affirm M.S.’s suspension in a 9-0 vote.  Moreover, petitioner has not met his burden of proving that the board president exhibited any actual bias.  Although petitioner asserts that the board president “possibly influenced the other board members” in their vote on petitioner’s appeal, petitioner has not produced any evidence of improper bias or influence (emphasis added).  The board president submits an affidavit in which he indicates that he did not communicate with any school officials concerning M.S.’s suspensions prior to the board appeal and that he based his vote solely on the record presented to the board.  Accordingly, there is no evidence that the board president was biased or that he improperly sought to influence other board members or school employees.  I remind respondent, however, that a board member may be required to recuse him or herself if he or she is personally familiar with an individual or matter before such board (see e.g. Opn. St. Comp. 91-48; cf. Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263).

In sum, petitioner has not met his burden of proving that respondent committed reversible error in connection with the student’s short-term suspension or that such suspension was excessive.

THE APPEAL IS DISMISSED.

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