Appeal of S.H., on behalf of her daughter S.H., from action of the Board of Education of the Lake Shore Central School District regarding student discipline.

Decision No. 17,963

(February 8, 2021)

Housh Law Offices, PLLC, attorney for petitioner, Frank Housh, Esq., of counsel

Webster Szanyi LLP, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ROSA., Interim Commissioner.-- Petitioner appeals the decision of the Board of Education of the Lake Shore Central School District (“respondent”) to impose discipline upon her daughter (“S.H.”).  The appeal must be dismissed.

At all times relevant to this appeal, S.H. attended respondent’s high school.  In April 2019, S.H. and several other students attended a school field trip to an amusement park (“park”) in Orlando, Florida, to perform in a music competition.  The students were separated into groups, each overseen by a chaperone.  As relevant here, the high school’s principal (“principal”) and band director/chair of the music department (“band director”) attended the trip.

On or about April 8, 2019, the principal suspended S.H. for five days for allegedly stealing items from a store in the park on April 7, 2019 – the last day of the trip.

In a letter dated April 9, 2019, respondent’s superintendent informed petitioner that a long-term suspension hearing would be convened to determine whether to suspend S.H. for more than five days.  The superintendent alleged that, “on April 7, 2019, [S.H.] was involved in the theft of property ... while on a school trip.”  In particular, the superintendent charged S.H. with three violations of respondent’s code of conduct:  (1) “[s]tealing ... property ... or being in possession of stolen property”; (2) “[l]ying to school personnel”; and (3) engaging in a “willful act” that disrupted “the normal operation of the school district.”

The hearing convened on June 14, 2019 and was presided over by a hearing officer.[1]  S.H., who was represented by counsel, pleaded not guilty to the charges.  As relevant here, the principal testified that, on April 7, 2019, a chaperone informed her that a student (“student A”) had been detained in the park’s security office.  The principal recalled that, upon her arrival at the security office, a security guard advised her that he had seen student A take an item from a store and attempt to leave without paying.  The principal testified that student A was discovered in possession of approximately $400 worth of goods for which she had no receipts. 

The principal recounted that, after she spoke to student A – who admitted to taking the items – she sought to speak to the other students in student A’s assigned group for the trip, including S.H.  According to the principal, while a chaperone brought these other students to the security office to speak to the principal, one of the students (“student B”) briefly broke apart from the group to hand a bag to a student unrelated to the incident, who later turned the bag over to school authorities.  The principal testified that, when she and the band director first questioned the students, they indicated that student A had walked out of a store with an item that she had forgotten to pay for but denied any further knowledge of or involvement with the incident.  After presenting the bag recovered from student B, however, one of the students stated she would “come clean” and produced several items.  The principal testified that she then searched the students and found all of them to be in possession of items for which they did not have receipts.  The principal indicated that, in total, the recovered items were valued at over $800.  On cross-examination, the principal indicated that the items found in S.H.’s possession were valued between $9 and $13 and that S.H. asked to go back to the store to obtain a receipt; however, she denied S.H.’s request because it was inconsistent with the chaperone’s version of events and she did not believe S.H. would be able to obtain a receipt.[2]

The band director testified that, when he questioned her on April 7, 2019, S.H. admitted to stealing items from the park.  Specifically, the band director recalled that, upon presentation of the bag recovered from student B, both S.H. and another student “claimed ... that they had only taken a few items.”  The band director indicated that S.H. did not have a receipt for her items but did not recall whether she had offered to obtain one.

S.H. testified on her own behalf and stated that she purchased a lanyard and a keychain from the park with cash on April 7, 2019.  S.H. testified that she threw the receipt for these items away and denied stealing anything.  S.H. admitted that, when questioned by the principal and band director on the day of the incident, she “said [she] took two things because [she] didn’t want to be, like, a snitch, or like, not take any of the blame for it.”  According to S.H., she later denied taking anything and offered to go back and retrieve her receipt out of the trash; however, the principal and band director denied her offer.

In a written report dated July 12, 2019, the hearing officer recommended that S.H. be found guilty of the first and third charges against her.  As relevant here, with respect to the first charge, the hearing officer credited the band director’s testimony and rejected S.H.’s testimony as to why she admitted to theft when questioned on April 7, 2019, finding that “there was no reason for her to accept blame for an infraction she did not commit.”  The hearing officer recommended that S.H. be suspended for an additional eight days. 

In a decision dated July 17, 2019, the superintendent adopted the hearing officer’s recommendations with respect to guilt and penalty.[3]  Petitioner appealed this determination to respondent by letter dated August 13, 2019.  Respondent considered petitioner’s appeal at a special meeting on September 4, 2019.  In a letter dated September 5, 2019, respondent affirmed the superintendent’s decision and dismissed petitioner’s appeal.  This appeal ensued.

Petitioner argues that the district failed to prove S.H.’s guilt through competent and substantial evidence.  Petitioner also contends that the district’s “goal” in questioning S.H. on the day of the incident “was to coerce confessions from ... children who were uninvolved with the theft.”  In addition, petitioner asserts that the record on appeal is “inadequate for review” and that respondent “heard this case without the entire record of the [h]earing.”  For relief, petitioner requests reversal of respondent’s determination and expungement of S.H.’s long-term suspension from her record.

Respondent argues that the petition must be dismissed for failure to comply with the Commissioner’s regulations governing appeals.  Respondent denies petitioner’s allegations that it did not possess, or consider, a complete recording of the long-term suspension hearing.  Respondent further contends that its decision was based upon competent and substantial evidence adduced at the long-term suspension hearing. 

First, I must address the procedural issues.  Respondent argues that the petition must be dismissed because it does not contain a clear and concise statement of petitioner’s claim in violation of 8 NYCRR §275.10.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself/herself entitled” (8 NYCRR §275.10).  Such statement must be “sufficiently clear” to advise the respondent of the nature of the petitioner’s claim and of the specific act or acts of which the petitioner complains (id.).  I find that the petition adequately identifies two primary allegations concerning the long-term suspension hearing and requests, for relief, expungement of the suspension from S.H.’s record.  Accordingly, I decline to dismiss the petition for failure to state a claim.

Respondent further avers that the petition does not include numbered paragraphs as required by section 275.3 of the Commissioner’s regulations.  A petition to the Commissioner must set forth the allegations in numbered paragraphs and be typewritten and double spaced (8 NYCRR §275.3[c]).  A liberal interpretation of these rules is appropriate where a petitioner is pro se and there is no prejudice to respondent (Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).  Although the petition is typewritten and double spaced, as required, it does not set forth its allegations in numbered paragraphs.  Nevertheless, respondent was able to formulate a meaningful response to petitioner’s allegations in its answer (see Appeal of Loughlin, 35 Ed Dept Rep 432, Decision No. 13,591).  Thus, on this record, I decline to dismiss the appeal on this basis (see generally Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Fillie-Faboe, 34 id. 643, Decision No. 13,438; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657).  However, because petitioner is represented by counsel, I admonish counsel for petitioner to comply with the practice regulations.

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 (Matter of Board of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., 91 NY2d 133, 140-141 [1997]; Matter of Board of Educ. of City School Dist. of City of N. Y. v. Mills, 293 AD2d 37, 39-40 [3d Dept 2002]; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).  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).

I find that the district produced competent and substantial evidence of S.H.’s guilt.  At the hearing, S.H. admitted that she told the band director that she stole “two things” from a store during the school trip.  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).

S.H.’s guilt is further established by the testimony and corroborating evidence of the band director.  As indicated above, the band director testified at the hearing that, when questioned on April 7, 2019, S.H. admitted to stealing a few items during the school trip.  S.H.’s admission is further corroborated by a contemporaneous[4] email – admitted into evidence at the hearing – that the band director wrote to the principal, in which he recalled that S.H. and another student “were the first to ... admit to taking a few things” after he “emptied the bag” recovered from student B containing “stolen goods” in front of them. 

At the hearing, S.H. testified that she admitted to theft on April 7, 2019 only to share, or deflect from, the guilt of the other students in her group.  As S.H. stated, she “didn’t want to be like, a snitch, or like, not take any of the blame for it.”  S.H. claimed that she had not, in fact, stolen any items or possessed any stolen items.  The hearing officer did not find this explanation credible, reasoning that “denying that she stole items would not have required her to inform [school employees] that others stole the items, and there was no reason for her to accept blame for an infraction she did not commit.”  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).  The record contains no evidence, let alone clear and convincing evidence, that the hearing officer’s determination was inconsistent with the facts.  Therefore, I decline to overturn the hearing officer’s credibility determination with respect to S.H.’s explanation of her conduct.[5]

Petitioner also suggests that the district’s “goal” was to “coerce confessions” from multiple students, including S.H.; however, she fails to establish her burden of proof on this contention.  There is no evidence that the questioning of S.H. or any of the other students in her group was hostile or intimidating.  Contrary to petitioner’s characterization of the hearing testimony, the principal and band director, on cross examination by counsel to S.H., both expressly denied that they had questioned S.H. in order to establish her guilt and instead indicated that they had questioned S.H. and the other students in order to understand the circumstances surrounding the April 7, 2019 incident.  Thus, there is no basis in the record to support a finding that S.H.’s statements were coerced (see Appeal of K.M., 59 Ed Dept Rep, Decision No. 17,847; Appeal of N.S., 57 id., Decision No. 17,268).

Finally, petitioner makes a conclusory allegation that the record is “inadequate for review” and that respondent rendered its decision “without the entire record of the [h]earing.”  Respondent denies this allegation and submits an affidavit from its board president, who states that respondent reviewed an audio recording of the long-term suspension hearing, which it listened to in its entirety.  Respondent’s president further indicates that, in considering petitioner’s appeal, respondent reviewed the evidence introduced at the hearing, the hearing officer’s recommendation, and the superintendent’s decision.  Indeed, contrary to petitioner’s contention, respondent has demonstrated its possession of the complete record of the hearing by transmitting a copy thereof to my Office of Counsel with its answer (see 8 NYCRR §275.12[b]).  Therefore, petitioner’s allegation concerning the adequacy of the record is without merit.

In light of this determination, I need not consider the parties’ remaining contentions.[6]

THE APPEAL IS DISMISSED.

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