Decision No. 18,091
Appeal of J.R., on behalf of her child, from action of the Board of Education of the Lyons Central School District regarding student discipline.
Decision No. 18,091
(February 17, 2022)
The Legal Aid Society of Rochester, attorneys for petitioner, Jonathan Falk, Esq., of counsel
Ferrara Fiorenza, P.C., attorneys for respondent, Catherine E.M. Muskin, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Lyons Central School District (“respondent”) to impose discipline upon her child (the “student”). The appeal must be sustained.
During the 2019-2020 school year, the student attended a program operated by the Wayne-Finger Lakes Board of Cooperative Educational Services (BOCES). In a letter dated November 20, 2019, the middle school principal (the “principal”) suspended the student for five days based upon three charges: (1) possession of a vaping pen/vaping substance; (2) attempted sale of drugs; and (3) “subsequent retaliatory behaviors.”
In a notice dated November 22, 2019, the superintendent informed petitioner that a long-term suspension hearing would be convened concerning the above charges. It also informed petitioner of her rights in connection with the hearing, including “[t]he right to have the hearing officer issue subpoenas on [her] behalf.”
The hearing took place on December 6, 2019. Petitioner, on behalf of the student, admitted to the charge of possession of a vaping pen/vaping substance but denied the remaining two charges. At the hearing, the district called a single witness, the principal. The principal testified that he spoke with a parent on November 20, 2019 who alleged that her child (the “buyer”) agreed to buy “acid” from the student. The principal further testified that the parent displayed screenshots of a social media conversation between the student and buyer. The principal additionally testified that he and the parent “contacted two different police departments.” One of these police departments conducted a “forensic … scan” of the buyer’s phone and accessed a social media conversation between the student and buyer. According to the principal,
The social media interactions reference the – [student] saying that tomorrow bring the five dollar bill for the acid tab. I can’t bring the acid tab. I can’t bring the tab tomorrow because I don’t have the money to buy them right now ... I have to get the money and I’ll bring the tabs the day after.
The district did not introduce a copy of the social media conversation into evidence. Additionally, on cross-examination, the principal was unable to identify the date when the alleged sale of drugs occurred.
At the conclusion of the hearing, the hearing officer found the student guilty of the possession of a vaping pen/vaping substance charge based on the student’s admission. He also found the student guilty of the sale of drugs charge based on the principal’s testimony. However, he did not find the student guilty of engaging in “retaliatory behaviors.”
In a decision dated December 10, 2020, the superintendent adopted the hearing officer’s recommendations regarding guilt and imposed a suspension “for the remainder of the 2019-2020 school year.” Petitioner appealed this determination to respondent. In a decision dated February 12, 2020, respondent expunged the student’s short-term suspension based on a procedural error but otherwise upheld the long-term suspension. This appeal ensued. Petitioner’s request for interim relief was denied on May 22, 2020.
Petitioner contends that respondent improperly denied her request to subpoena certain witnesses. Petitioner further argues that respondent failed to establish the student’s guilt by competent and substantial evidence. Petitioner also complains that respondent took 68 days to render a decision on her appeal. Petitioner seeks expungement of the “attempted sale of drugs” charge from the student’s record.
Respondent argues that it met its burden of proving the student’s guilt by competent and substantial evidence. Respondent denies any prejudicial wrongdoing in connection with the hearing.
First, I must address two preliminary matters. On appeal, respondent has submitted affidavits from the principal and superintendent. Parties may not augment the hearing record with additional information that they could have introduced, but did not introduce, at the hearing (Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438). To hold otherwise would contravene Education Law § 3214 (3) (c) (1), which requires that, after a long-term suspension hearing, “[a]n appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.” Respondent had an opportunity to elicit testimony from the principal at the hearing, and the superintendent was free to explain his reasoning in his written decision. Therefore, I decline to consider these affidavits on appeal (see Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438; Appeal of D.B. and A.B., 57 id., Decision No. 17,395; Appeal of R.C., 49 id. 275, Decision No. 16,023).
Additionally, I do not find that petitioner is entitled to expungement of the student’s suspension based on the time respondent took to resolve her appeal. There is no indication in the record that respondent has a rule or policy dictating when a decision resolving an appeal to the board must be rendered. Under these circumstances, I do not find that respondent’s timeline in resolving petitioner’s appeal was unreasonable (see Appeal of Doe, 56 Ed Dept Rep, Decision No. 17,109; Appeal of L.I., 50 id., Decision No. 16,195).
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 ; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37, 39 [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).
Hearsay evidence is admissible in administrative hearings, and hearsay alone may constitute competent and substantial evidence so long as “such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted” (Matter of Agudio v State Univ. of N.Y., 164 AD3d 986, 988 [3d Dept 2018] [internal quotation marks and citations omitted]; Matter of Hill v State Univ. of N.Y. at Buffalo, 163 AD3d 1454, 1455 [4th Dept 2018]; Matter of McGillicuddy’s Tap House, Ltd. v New York State Liq. Auth., 57 AD3d 1052, 1052-1053 [3d Dept 2008]; see Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 141 ).
With respect to a student’s due process rights, Education Law § 3214 (3) (c) (1) provides that the superintendent may personally preside over the long-term suspension hearing or may designate a hearing officer to do so. Education Law § 3214 (3) (c) (1) further provides that, at the long-term suspension hearing, “[t]he hearing officer shall be authorized to administer oaths and to issue subpoenas in conjunction with the proceeding before him or her.”
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).
Upon review of the record, I find that the district improperly denied petitioner’s request to subpoena certain witnesses. Petitioner requested that the hearing officer issue subpoenas for the buyer’s parent and the police officers who investigated the allegation. With respect to the parent, the hearing officer reasoned that the district’s “interest in keeping the names of the students confidential” outweighed petitioner’s right to cross-examination (D.F. v Board of Educ. of Syosset Cent. Sch. Dist., 386 F Supp 2d 119, 127 [ED NY 2005], affd 180 Fed Appx 232 [2d Cir. 2006]; see also Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,297).
The hearing officer’s reasoning is misplaced. This exception to a parent’s statutory right to cross-examination is derived from D.F. v Board of Education of Syosset Central School District (386 F Supp 2d 119). The exception is limited to circumstances where: (1) a student witness’s identity is unknown to the student charged with misconduct; and (2) the school district “reasonably consider[s]” the charged student “to be potentially violent” (D.F. v Board of Educ. of Syosset Cent. Sch. Dist., 386 F Supp 2d at 127).
This exception does not apply here as the proposed witness, the parent, is an adult. However, even if the identity of an adult could fall within this exception, the district offered no evidence suggesting that the witness was unknown to the student. Under the district’s theory of the case, the student agreed to sell drugs to the buyer, and later exchanged money for drugs in a classroom during the school day. Thus, the identity of the buyer was necessarily known to the student. This, in turn, would easily allow him to identify the buyer’s parent. Therefore, I find that the district was not entitled to shield the identity of the parent (Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438). As such, the hearing officer abused his discretion in declining to issue a subpoena for the parent’s attendance at the hearing.
The hearing officer also erred by declining petitioner’s request to issue a subpoena for the police officers. After petitioner made this request, the hearing officer asked the principal: “Would it be possible to bring in those police officers?” The principal responded: “I have no idea what that process would look like.” The hearing officer then proceeded to ask the principal additional questions; the issue was not addressed further. This, too, constituted an abuse of discretion.
I further find that the hearing officer’s failure to adjourn the hearing and issue subpoenas for these witnesses violated the student’s right to a fair hearing under Education Law § 3214. Petitioner denied the student’s guilt as to the charges of attempted sale of drugs and retaliation; as such, the district was required to establish the student’s guilt by competent and substantial evidence. The district’s case consisted entirely of hearsay evidence—much of it double or triple hearsay. It did not introduce any direct evidence of the student’s guilt into evidence, such as a copy of the social media conversation or a police report adverted to by the principal.
Given this limited evidence, the parent and police officers were likely to offer testimony and/or evidence directly relevant to the student’s guilt. The parent was the source of the complaint against the student, and the police officers investigated the student’s conduct. If sufficiently probative, such evidence and testimony could have led a reasonable factfinder to find the student not guilty of the charges against him (Appeal of M.P. and T.P., 60 Ed Dept Rep, Decision No. 17,937). The instant appeal is distinguishable from prior decisions of the Commissioner that have held that the failure to issue subpoenas in connection with a long-term suspension hearing was harmless error where the proposed witnesses would have testified only as to penalty (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652; Appeal of R.T. and S.T., 53 id., Decision No. 16,581). Therefore, the charge of attempted sale of drugs must be expunged from the student’s record.
Nevertheless, respondent was entitled to impose a penalty for the student’s possession of a vaping pen/vaping substance. 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 shocking to one’s sense of fairness as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of J.M., 60 Ed Dept Rep, Decision No. 18,002). Because the record supports a finding of guilt only on the charge of possession of a vaping pen/vaping substance, I find an approximately seven-month suspension to be shocking to my sense of fairness (see generally Appeal of D.K., 58 Ed Dept Rep, Decision No. 17,539 [five-day suspension imposed for use of a vaping device; expunged on procedural grounds]).
Had respondent found the student guilty of only the possession of a vaping pen/vaping substance charge, it could have imposed a lesser penalty. At this juncture, however, the student has already served his entire suspension of seven months. To permit retroactive amendment of his record to reflect a lesser penalty on the single charge of possession of a vaping pen/vaping substance would be inaccurate (cf. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,503). Accordingly, due to the passage of time, the possession of a vaping pen/vaping substance charge must also be expunged from the student’s record.
This is one of several recent appeals resulting in the expungement of long-term suspensions based upon inadequate proof (e.g. Appeal of D.S., 61 Ed Dept Rep, Decision No. 18,072; Appeal of a Student with a Disability, 60 id., Decision No. 17,929; Appeal of S.K., 59 id., Decision No. 17,824) or procedural violations (Appeal of N.V.D., 60 Ed Dept Rep, Decision No. 17,985 [improper attempt to hold suspension in abeyance]; Appeal of M.P. and T.P., 60 id., Decision No. 17,937 [failure to issue subpoenas]). While the parents ultimately prevailed on appeal, these are pyrrhic victories for parents whose children were improperly suspended for weeks or months. School districts should carefully consider the nature and quality of proof against students before pursuing long-term suspensions. Should they choose to proceed, school districts must ensure the assiduous protection of students’ due process rights.
I have considered respondent’s remaining arguments and find them to be without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent expunge the student’s record of the disciplinary offenses that were the subject of respondent’s decision dated February 12, 2020.
END OF FILE
 It is unclear whether, or to what extent, the principal spoke directly with the buyer. The principal began his testimony by stating that he “was contacted by a parent,” who “requested a meeting” and “came in at eight o’clock.” However, later portions of the testimony suggest that the student also attended this meeting (e.g., “So the – I asked, of course, the – the student and the – the parent that were there ...”).
 The hearing officer indicated that, in his view, this charge was limited to the sale of acid. Respondent does not contest this determination on appeal.
 Consideration and determination of the stay request was delayed due to the widespread school closures occasioned by the COVID-19 pandemic.
 The Commissioner has held that “[section] 275.12 of the Commissioner’s regulations does not preclude a respondent from incorporating by reference affidavits and exhibits submitted in response to a stay request” (Appeal of O’Brien, 51 Ed Dept Rep, Decision No. 16,316). Therefore, petitioner’s objections thereto are without merit.
 Petitioner recognized this incongruity when, in response to the district’s statement that it would not produce the parent at the hearing, she stated: “Well, to my understanding only a child can make that objection.”
 I have described the district’s theory of the case only to demonstrate its internal inconsistency, not to suggest that the district proved this series of events at the hearing.
 Hearsay testimony is admissible in administrative proceedings—although its probative weight should generally be discounted according to its degree of attenuation (Matter of Gerald HH. v. Carrion, 130 AD3d 1174, 1175-76 [3d Dept 2015]; Appeal of D.J., 42 Ed Dept Rep 382, Decision No. 14,888 ).
 I need not determine whether the district proved the student’s guilt through competent and substantial evidence. I note, however, that the authority cited by the district in support of its case involved more substantial evidence of guilt (Appeal of J.D. and J.D., 58 Ed Dept Rep, Decision No. 17,551 [written and verbal admissions of student]; Appeal of J.S., 50 id., Decision No. 16,091 [direct testimony of three witnesses]).