Decision No. 18,209
Appeal of B.A., on behalf of his child, from action of the Board of Education of the Maine-Endwell Central School District regarding student discipline.
Decision No. 18,209
(October 31, 2022)
Legal Services of Central New York, attorneys for petitioner, Susan M. Young, Esq., of counsel
Coughlin & Gerhart LLP, attorneys for respondent, Nicholas S. Cortese, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Maine-Endwell Central School District (“respondent”) to impose discipline on his child (the “student” or “student A”). The appeal must be sustained.
During the 2021-2022 school year, the student attended seventh grade at respondent’s middle school. On December 22, 2021, while serving an out-of-school suspension, the student received a message from a friend (“Student B”), via a social media application, asking “Should I jump [Student C]?” The student then engaged in a text conversation with Student B as follows:
Student B: “Should I jump [Student B]??”
Student A: “Go ahead”
Student A: “U show film it tho if u do”
Student B: “I will”
Student A: “Ok send that s*** to me after u do it”
Student B: “Ok”
Student A: “Ima laugh my as (sic) off so hard if u bear (sic) his a**.”
The following day, Student B attacked Student C.
In a notice dated January 3, 2022, the principal (the “principal”) suspended the student for five days for “co-conspiring” to injure Student C.
The district issued a notice indicating that it would convene a long-term suspension hearing concerning the student’s conduct. In the notice, the district accused the student of “co-conspiring through text messages to plan an attack on another student.”
At the conclusion of the long-term suspension hearing, the hearing officer found the student guilty of the charge against him. In a decision dated January 13, 2022, the superintendent adopted the hearing officer’s findings of fact. The superintendent suspended the student until December 23, 2022 with the possibility of an early return on June 30, 2022. Petitioner appealed this determination to respondent. In a decision dated February 7, 2022, respondent upheld the long-term suspension. This appeal ensued. On May 27, 2022, I issued an order staying respondent from imposing further suspension pending a final decision (8 NYCRR 276.1 [a]).
Petitioner contends that the district did not meet its burden of proving that the student was guilty of conspiring to attack another student. Petitioner asserts that the evidence adduced at the hearing demonstrates that the student did not suggest the idea of attacking Student C; did not offer to assist Student B in any way; and did not take any action to ensure that Student B could, or would, attack Student C. Petitioner further argues that the district presented “no evidence or testimony that [the student’s] texts had any effect on [Student B’s] actions.” Additionally, petitioner argues that the penalty was disproportionate to the offense. For relief, petitioner seeks expungement of the student’s suspension from his record.
Respondent argues it proved the student’s guilt by competent and substantial evidence. Respondent contends that the penalty was reasonable and supported by the student’s anecdotal record.
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). 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. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 ; see Appeal of J.J., 46 Ed Dept Rep 270, Decision No. 15,505; Appeal of Wallen, 33 id. 313, Decision No. 13,060).
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).
The sole charge against the student was that he “conspired” to attack Student C. Respondent has not defined this charge in its code of conduct. Merriam-Webster’s Dictionary defines “conspire” as “to join in a secret agreement to do an unlawful or wrongful act or an act which becomes unlawful as a result of the secret agreement” (Merriam-Webster.com Dictionary, conspire, [https://www.merriam-webster.com/dictionary/conspire] [definition 1a]). Conspiracy is also prohibited by the Penal Law, which requires an agreement to commit an illegal act and an overt act in support thereof (see Penal Law Article 105; People v Caban, 5 NY3d 143, 149 ). Thus, at minimum, a conspiracy for student disciplinary purposes requires an agreement to do something illegal or wrongful.
The district’s evidence, which consists of the text conversation and the testimony of the middle school principal, does not establish the existence of such an agreement (see Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438). At most, this evidence merely establishes that the student encouraged Student B’s plan to attack Student C. Although the student suggested filming the proposed fight, there is no evidence that the attack was filmed. Nor did respondent call Student B as a witness, the other party to the alleged “conspiracy.”
The student’s testimony further undermines the district’s charge that the student entered into an agreement. The student testified that Student B messaged him and proposed an attack on Student C. The student explained that when he responded “[g]o ahead,” he intended to convey the sentiment that: “it’s not my responsibility, it’s up to him, it’s not mine, it’s not my jurisdiction to tell him [what to do].” Additionally, the student testified that he did not think Student B was serious about attacking Student C “because [Student B] always says he’s going to do stuff but never does.”
While a hearing officer may draw reasonable inferences supported by the record (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133 ; Appeal of L.L., 45 Ed Dept Rep, Decision No. 15,306), the evidence does not support respondent’s finding that the student conspired to attack Student C (compare Appeal of L.M., 58 Ed Dept Rep, Decision No. 17,561 [school officials made reasonable inferences concerning a student’s guilt based on multiple sources of evidence, including admissions by the student]; Appeal of D.J., 42 id. 382, Decision No. 14,888 [multiple sources of testimonial evidence supported reasonable inference of guilt]; and Appeal of J.C. and P.C., 41 id. 395, Decision No. 14,723 [abundant digital evidence of wrongdoing, partial admissions, and petitioner’s failure to establish any credible, innocent explanation supported reasonable inference of guilt]). Therefore, I find that the district did not establish the student’s guilt through competent and substantial evidence. Because both the short-term and long-term suspensions were predicated upon the single charge of conspiracy, they must be expunged from the student’s record (Appeal of D.S., 61 Ed Dept Rep, Decision No. 18,072; Appeal of R.E. and J.E., 58 id., Decision No. 17,438; Appeal of L.L., 48 id. 197, Decision No. 15,835).
While the appeal must be sustained, I am compelled to make two additional observations. First, even assuming that the student was guilty of a lesser charge, I would find a suspension of nine months (potentially reduced to five upon compliance with a behavioral contract) to be shocking to the conscience (Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055; compare Appeal of J.M., 60 Ed Dept Rep, Decision No. 18,002 [five-day suspension upheld for participating in fight]). The student’s tacit encouragement of Student B’s plot did not warrant a school year’s worth of missed direct instruction.
Second, while the student did not have a legal duty to prevent Student B from causing physical harm to another (see Restatement [Second] of Torts § 315 ), he should have demonstrated greater empathy under the circumstances. Students must understand that impulsive and juvenile comments can have real world consequences.
“[P]unitive and exclusionary” suspension, however, will not impart that lesson. The facts of this appeal prove the point: the student sent the messages at issue while suspended for a previous infraction. Learning and success are not solely academic in nature; they are dependent upon the social-emotional support that school districts are required to provide. In this respect, I take notice of respondent’s Core Beliefs, the second of which—“[e]very student can learn and achieve success”—is inclusive of all students. Thus, respondent is responsible for ensuring that all students have equitable access to interventions that will support their holistic academic and social-emotional development as learners and developing, contributing members of society. Instead of punishment, respondent should have helped the student “learn to assume and accept responsibility for [his] own behavior” while simultaneously establishing remedial supports to foster, and thus augment, the student’s emotional intelligence. Punishment for its own sake does not reform; it only creates cycles of resentment and distrust.
In light of this disposition, I need not address the parties' remaining contentions.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent expunge any reference to the short- and long-term suspensions at issue in this appeal from the student’s record.
END OF FILE
 The expletives have been redacted for purposes of this decision.
 In his written recommendation, the hearing officer wrote that the principal “stated that when he spoke to [Student B] about the incident, [Student B] told him that he and [the student] had planned to attack [Student C].” I have reviewed the audio recording of the long-term suspension hearing, which does not reveal any such testimony. Even assuming that this statement was in the record, I would not find that this hearsay statement alone—which is inconsistent with the text conversation entered into evidence—constituted competent and substantial evidence that the student conspired to attack Student C.
 This generally lends support to the student’s belief that Student B was not serious.
 Given the disposition of this appeal, I need not decide what level of punishment would be appropriate.
 New York State Department of Education, Every Student Succeeds Act Plan (Jan. 12, 2018), available at http://www.nysed.gov/common/nysed/files/programs/essa/nys-essa-plan.pdf (last accessed Oct. 24, 2022); see generally Appeal of N.V.D., 60 Ed Dept Rep, Decision No. 17,985).
 Respondent’s Code of Conduct, VIII.