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Decision No. 12,701

Appeal of BERMUDA NORWOOD on behalf of her son, CAESAR NORWOOD, from action of the Board of Education of the Enlarged City School District of Troy, relating to student discipline.

Decision No. 12,701

(May 26, 1992)

Statewide Youth Advocacy, Inc., attorneys for petitioner, Jennifer Strus, Esq., and Betsy Swan, Esq., of counsel

Ruberti, Girvin and Ferlazzo, P.C., attorneys for respondent, James McCarthy, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent’s affirmance of the superintendent’s decision to suspend her son for the remainder of the 1991-92 school year. The appeal must be dismissed.

Petitioner’s sons is a fifteen year old student attended respondent’s high school until September 25, 1991, when he was suspended from school. "…for allegedly restrain(ing) a student who was trying to run away from an alleged physical altercation." After granting two adjournments at petitioner’s request, a superintendent’s hearing was held on October 24, 1991. At the close of the testimony of both parties, the hearing officer permitted, over the objection of petitioner’s attorneys, the introduction of the student’s prior disciplinary record before reaching a determination on the student’s guilt or innocence. On November 1, 1991, the hearing officer issued his decision finding the student guilty of the charges and recommending his suspension from school for the remainder of the 1991-92 school year. The superintendent adopted the hearing officer’s recommendation in his decision dated November 12,1991. The board of education denied petitioner’s appeal on December 11, 1991. This appeal ensued.

Petitioner maintains that the hearing officer’s failure to bifurcate the hearing by admitting her son’s anecdotal record into evidence prior to rendering a decision regarding the student’s guilt or innocence violates due process. To support her contention, petitioner submits an affidavit from her son’s attorney who states that she declined to introduce evidence regarding the student’s anecdotal record at the hearing to avoid prejudicing the hearing officer.

Respondent asserts that the hearing was fair, and was, in effect, bifurcated, as evidenced by the transcript and the hearing officer’s findings of fact. Furthermore, respondent argues that there was no violation of due process since the student was given the opportunity to object to the contents of the anecdotal record but declined to do so.

A pupil’s anecdotal record may not be considered by a hearing officer before reaching a determination on the student’s guilt or innocence. However, a student’s anecdotal record may be considered after a finding of guilt as to specific charges in order to fix the penalty (Appealof Ezard, 29 Ed Dept Rep 135; Matter of Stokes, 25 id. 117). Although a student’s anecdotal record should not be admitted into evidence prior to a finding on the guilt or innocence of the accused, its admission alone does not automatically destroy the hearing officer’s impartiality. (Appeal of Ezard, Supra.; Matter of McMahon, 24 Ed Dept Rep 252).

Although the hearing officer improperly accepted the anecdotal record into evidence before reaching his decision on the charges, there is no evidence that he considered the record or was otherwise influenced by its introduction in reaching his determination on guilt or innocence. Rather, the hearing officer heard the testimony of the alleged victim and the accused, and observed their demeanors. Based upon the testimony of the witnesses, the hearing officer found petitioner’s son guilty of the charges. The hearing officer’s findings of fact provide a well reasoned analysis which demonstrates that his decision was based primarily upon his assessment of the credibility of the witnesses without consideration of the contents of the student’s anecdotal record. In addition, petitioner does not allege that she was deprived of an opportunity to introduce evidence regarding any aspect of her son’s anecdotal record; instead she admits that she declined to do so. Although petitioner must be given an opportunity to review the anecdotal record and raise objections to its contents, nothing in the record suggests that petitioner was prohibited from presenting her evidence concerning the anecdotal record at the penalty stage of the hearing.

Without sufficient evidence to demonstrate that the hearing officer was improperly influenced by the introduction of the student’s anecdotal record prior to his determination of the student’s guilt or innocence, or evidence that petitioner was deprived of an opportunity to raise objections to the contents of the anecdotal record, I find that its introduction constitutes harmless error.