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Decision No. 14,192

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the South Huntington Union Free School District regarding student suspension.

Decision No. 14,192

(August 18, 1999)

Elvira N. Hoffman, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Mary Anne Sadowski, Esq., of counsel


CATE, Acting Commissioner.--Petitioner appeals the suspension of her son for the remainder of the 1996-97 school year and the entire 1997-98 school year. The appeal must be dismissed.

On April 30, 1997, petitioner's son, then thirteen years old, was involved in an incident on a staircase at the Stimson Middle School in which he allegedly made sexual contact with a female student. The female student reported the alleged incident to the secretary in the school discipline office, her guidance counselor and the principal.

On May 5, 1997, the principal telephoned petitioner to inform her that her son would be suspended. Petitioner received written notice from the principal dated May 13, 1997, that her son was suspended on May 13, 14, 15, 16 and 19, 1997 because he was "insubordinate, disorderly and/or conducted himself in such a manner as to endanger the health, safety and welfare of others in that he made inappropriate physical contact with a female student." The notice informed petitioner of her "right to request an immediate informal conference" and that a hearing would be convened. Petitioner received an additional notice, also dated May 13, 1997, from respondent's deputy superintendent, that a hearing was scheduled for May 19, 1997 at which her son was "entitled to be represented by counsel, to question witnesses against him and to present witnesses or evidence on his behalf" and that, if found guilty of the charges, "his anecdotal records, report cards and progress reports may be considered on the issue of an appropriate measure of discipline."

Although the notice indicated that the hearing would take place on May 19, 1997, the hearing actually convened on May 22, 1997, but was adjourned at petitioner's request so that she could obtain counsel. Notice of the next hearing date was delivered to petitioner on June 12, 1997, and when the hearing reconvened on June 17, 1997, petitioner still had not retained counsel for her son.

The hearing went forward, nevertheless, and her son was found guilty of the charges. The principal, the guidance counselor, the female student complaining witness, petitioner and petitioner's son testified at the hearing. Both the guidance counselor and principal testified that a male student told them that petitioner's son admitted the sexual conduct, as charged. They also testified that the female student reported the unwanted sexual contact on the day it occurred and subsequently. The female student testified that petitioner's son touched her in a sexual manner without her consent and petitioner's son testified that he did not. A suspension was imposed for the remainder of the 1996-1997 school year and the entire 1997-1998 school year, with alternative instruction at home.

A juvenile delinquency petition filed in Family Court on July 15, 1997, arising from the same April 30, 1997 alleged incident, was dismissed on September 26, 1997, after a hearing on September 15, 1997. As part of the related police investigation, the male student who had implicated petitioner's son to school authorities provided a written sworn statement that he lied previously and that petitioner's son actually made no admission to him. His May 24, 1997 police statement said that he witnessed no sexual contact by petitioner's son, but that the female student told him it had occurred.

Petitioner's attorney informed respondent's superintendent of the Family Court's disposition of the case by letter dated December 2, 1997. In that letter, petitioner's attorney also requested an appointment to review the student's records. By letter dated December 30, 1997, respondent provided petitioner's attorney with the student's discipline record that was sent to the board for its consideration of petitioner's appeal.

At its meeting on January 7, 1998, respondent reviewed petitioner's appeal and upheld the superintendent's June 18, 1997 suspension. Petitioner commenced this appeal on February 5, 1998. Interim relief was granted on March 5, 1998, directing respondent to readmit petitioner's son to its schools pending an ultimate determination of this appeal and to refer him immediately to its Committee on Special Education (CSE) for a comprehensive evaluation to determine whether he is a student with a disability pursuant to Education Law "4402 and Part 200 of the Commissioner's Regulations.

Petitioner seeks an order reversing the decision of respondent and expunging all references to the suspension from his school record. Petitioner also seeks free compensatory education in another school district or a private school of his choice. Petitioner further contends, interalia, that respondent's suspension of her son violates the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. "1415(k) by failing to provide him with appropriate procedural safeguards when respondent had knowledge that the student had a disability before the alleged misconduct occurred. Respondent contends that the IDEA claim, raised in petitioner's appeal to the board but not at the hearing, is not a matter properly before the Commissioner in this appeal. Respondent also contends that, consistent with the stay order issued March 5, 1998, its CSE determined that petitioner's son is not eligible for services pursuant to the IDEA.

Petitioner also contends that her son did not receive due process under Education Law "3214. Petitioner further contends that the hearing decision is arbitrary and capricious, not based upon substantial and competent evidence, and made without physical evidence or testimony from witnesses to the incident except for her son, who steadfastly maintained his innocence. Petitioner also contends that the penalty is excessive, particularly because respondent persisted in punishing her son for the same charges dismissed by family court.

Respondent denies that petitioner was prejudiced by any alleged lack of notice to appeal and that her son was denied due process. Respondent also contends that the penalty imposed was appropriate.

Education Law "3214(3)(c) provides that no pupil may be suspended for a period in excess of five days unless the pupil is given an opportunity for a fair hearing, upon reasonable notice, at which the pupil shall have the right of representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf. What constitutes "reasonable notice" will vary with the circumstances of each case (Bd. of Educ. of Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133). The charges need only be sufficiently specific to advise the student of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing (Appeal of Pinckney, 37 Ed Dep Rep 284, Decision No. 13,860; Matter of Rose, 10 id. 4, Decision No. 8154). Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings; as long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Central School District, supra). Petitioner was notified on May 5, 1997 by the principal in a face-to-face meeting of the intent to suspend her son for his involvement in the April 30, 1997 incident. Petitioner contends that the May 13, 1997 written hearing notice was defective because it stated the incident occurred on May 30, 1997 and was addressed to the wrong town and zip code. The address did not impede receipt, however, because the notice was hand-delivered to petitioner and the April 30, 1997 date of the incident, which was known to petitioner, was provided in a corrected notice that was also hand-delivered prior to the hearing.

With regard to petitioner's contentions that the hearing was unfair and denied her due process, there is a presumption of honesty and integrity in those serving as adjudicators and petitioner has the burden of rebutting this presumption (Matter of Dwaileebe, 17 Ed Dept Rep 304, Decision No. 9614). I find that petitioner has failed to meet this burden.

The record indicates that the hearing was adjourned on May 22, 1997 to allow petitioner the opportunity to retain counsel; that petitioner made no objection to the hearing reconvening on June 17, 1997 without having retained counsel; that petitioner and her son appeared and testified at the June 17, 1997 hearing; that the procedures for the hearing were sufficiently explained to petitioner; that petitioner was provided with a statement of the charge; that petitioner was given the opportunity to cross examine each witness; that petitioner concluded her cross examination of the female student complaining witness voluntarily; and that petitioner's counsel was provided a written transcript of the hearing.

Petitioner objects to the introduction of hearsay evidence at the hearing, particularly the alleged admission by petitioner's son to the male student whose subsequent sworn statement to police contradicted what he told school authorities. To the extent the testimony constituted hearsay evidence, it is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (Appeal of Milano, 37 Ed Dept Rep 472, 480, Decision No. 13,908; Appeal of Hamet, 36 id. 174, Decision No. 13,692). In the present case, respondent's primary witness was the female student who accused petitioner's son of assaulting her, not the male student.

Since the hearing officer is in the best position to determine matters concerning witness credibility, the Commissioner will not substitute his judgment for that of the hearing officer unless the findings are not supported by facts in the record (Appeal of Pinckney, supra; Appeal of Bowen, 35 id. 136, Decision No. 13,491; Appeal of Kittell, 31 id. 419, Decision No. 12,686). Upon the record before me, I find no basis to substitute my judgment for that of the hearing officer with respect to the credibility of the female student witness, petitioner's son and petitioner's testimony. Even discounting the statements of the male student who later retracted his statement to police, the hearing officer acted within her authority in finding the testimony of the female student more credible than petitioner's son.

A 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 (Appeal of Cynthia and Robert W., 37 Ed Dept Rep 437, Decision No. 13,899; Appeal of Bowen, supra; Appeal of Homick, 34 id. 150, Decision No. 13,265). Furthermore, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Alexander, 36 Ed Dept Rep 160, Decision No. 13,689; Appeal of Durkee, 20 id. 94, Decision No. 10,329); 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 Alexander, supra; Appeal of Forestiero, 34 id. 592, Decision No. 13,419). Upon the record before me, I find no basis for determining that respondent acted arbitrarily, unfairly or excessively in finding petitioner's son guilty of the offense charged and imposing a penalty of suspension from school for the remainder of the 1996-97 school year and for the 1997-98 school year.

With regard to petitioner's special education claims for compensatory education and a change in placement, petitioner's son was referred for evaluation and respondent's CSE determined that he is not a student with a disability and therefore, not eligible for services pursuant to the IDEA. If petitioner wishes to contest the CSE's determination, she must exhaust her remedies under Education Law "4404 by requesting an impartial hearing and, if she remains dissatisfied, by pursuing a subsequent appeal to the State Review Officer (Appeal of Jane G., 38 Ed Dept Rep 1, Decision No. 13,969; Appeal of a Student Suspected of Having a Disability, 37 Ed Dept Rep 565, Decision No. 13,928).

Petitioner's claim for attorney's fees cannot be entertained in this appeal because the Commissioner of Education lacks jurisdiction to make such an award pursuant to Education Law "310 (Appeal of Silano, 33 Ed Dept Rep 20, Decision No. 12,961); Appeal of Martin, 31 id. 441, Decision No. 12,692; Appeal of Siles, 28 id. 313, Decision No. 12,118).

I have examined petitioner's remaining allegations and find them to be without merit.