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Decision No. 14,287

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

Decision No. 14,287

(December 24, 1999)

Hodgson Russ Andrews Woods & Goodyear, L.L.P., attorneys for respondent, Karl W. Kristoff, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Kenmore-Town of Tonawanda Union Free School District ("respondent") to suspend his son for 24 days. The appeal must be sustained in part.

In May 1999 petitioner's son attended the eighth grade at respondent's Kenmore Middle School. On May 13, 1999, a female student reported to her social studies teacher that petitioner's son said she was on his "hit list." That same morning, the principal met with nine girls who believed their names were on such a list. Later that day, petitioner's son was brought to the principal's office by the teacher who received the original complaint. Petitioner's son denied the existence of a "hit list", but told the principal that he had used the term "kick list." The principal then telephoned petitioner and met with him in her office to discuss the incident. At that meeting, petitioner revealed that he had told his son a month earlier not to talk about having such a "list" in light of the school shooting in Littleton, Colorado.

Petitioner was notified by letter dated May 14, 1999 that his son was suspended for five days, from May 14 through May 20, 1999 "for a verbal statement about his hit list against students" and that a superintendent's hearing would be scheduled. By letter dated May 18, 1999, the superintendent informed petitioner that a hearing would be held on May 19, 1999 to determine if a long-term suspension would be imposed on the charge of "endangering the safety, health and welfare of other students and staff at Kenmore Middle School, making verbal statements about his hit list of students in building." The hearing was held on May 19, 1999 with the assistant superintendent serving as hearing officer. Petitioner appeared with his wife and son. The principal and social studies teacher appeared on behalf of respondent. Neither party was represented by counsel.

At the hearing, the principal testified that one student complained to her that petitioner's son told her she was on his "hit list" because she refused to give him her homework. She testified further that eight other distraught students claimed petitioner's son approached them and said, "You're on my hit list." The principal also testified that petitioner's son denied having a written list and denied referring to a "hit list" but admitted using the term "kick list." Based on that admission, as well as word spreading throughout the school about the "hit list," and petitioner's statement that he had warned his son a month earlier not to use that term in light of the shooting in Littleton, Colorado, the principal testified that she needed to remove petitioner's son from school for his safety and the safety of other students.

The social studies teacher testified that he did not hear petitioner's son refer to a "hit list." He also testified that the student who complained to him was "serious" and "concerned." He testified that petitioner's son told the principal in his presence about having a "kick list."

Petitioner's son testified that he was confronted before school on May 13 by a group of four girls who told him to "get out of here" after he asked one of them for her homework. He denied threatening the girls and speculated that the girls may have complained about him because he made them angry. Petitioner's son testified that he had not threatened to use a "hit list" since his father warned him in April not to do so. Petitioner's son acknowledged using the term "kick list" and related it to a "game" developed among boys in gym class who "kick each other in the shins to see who gives up." He explained that "Somebody would just like go up and go, 'I have to remember to kick you' or 'You're on my kick list'." But, petitioner's son testified that he did not play this game or use that term with the girls who complained to the principal.

The hearing officer found petitioner's son guilty of threatening the safety, health and welfare of other students and recommended that he be suspended until the close of the 1998-99 school year (24 school days) and referred to respondent's Committee on Special Education (CSE) for evaluation to determine if he has a disability. The superintendent accepted this recommendation and notified petitioner by letter dated June 2, 1999. Respondent adopted the superintendent's decision on July 6, 1999. This appeal ensued.

Petitioner seeks an order expunging the suspension from his son's records and directing the superintendent to write a letter of apology. Petitioner also asks that the superintendent, hearing officer and principal be charged with professional misconduct.

Petitioner contends that he was not provided a meeting with the principal after his son was suspended for five days or adequate notice of that initial five-day suspension. Petitioner also contends that he was not given sufficient advance notice of the superintendent's hearing. Petitioner contends that respondent deprived him of due process by denying his requests to postpone the hearing and to make available for cross-examination the girls who accused his son, as well as by failing to collect statements from them.

Petitioner contends that respondent's witnesses had no first-hand knowledge of the incident and that the principal testified falsely because his son did not tell her or any student that she was on a "kick list" or a "hit list." Petitioner contends that the hearing decision was not issued in a timely manner. Petitioner also contends that respondent refused to provide his son with alternate instruction and transportation to take his final examinations.

Respondent contends that the petition should be dismissed as untimely because it was commenced more than thirty days after the board's July 6, 1999 decision. Respondent also contends that it complied with "3214 of the Education Law and that the twenty-four day suspension was appropriate in light of the circumstances.

Respondent denies providing inadequate notice of the five-day suspension and denies that petitioner was deprived of a meeting with the principal, asserting that a meeting took place on April 13 with an invitation by the principal for petitioner to let her know if he wished to speak further. Respondent denies receiving a request for postponement of the hearing and alleges that it did not fail to collect statements from accusing witnesses but rather elected not to present such statements at the hearing.

Respondent admits that neither the principal nor the social studies teacher heard petitioner's son state that he had a "hit list" but alleges that both school witnesses heard him admit saying "kick list" and had direct knowledge of the incident from the female students to whom his comments were directed. Respondent denies refusing to provide alternate instruction but admits that the assigned teacher initially failed to report to his assignment and had trouble reaching the student's teachers. Respondent alleges that the student was provided transportation to take his final exams.

I will first address the procedural issue of timeliness. An appeal to the Commissioner of Education under Education Law "310 must be brought within thirty days of the act or decision complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner commenced the appeal on August 11, 1999, more than 30 days from respondent's July 6, 1999 decision. He asks that I excuse the delay because he did not learn of respondent's determination until July 20 and was unable to begin preparing the appeal until July 24 due to military service. Petitioner attaches a letter from the adjutant of the New York Army National Guard stating that petitioner was in a field environment and unable to use any phones, computers or typewriters from July 10 through 24, 1999. I will excuse the delay in the interests of justice because there is no evidence of prejudice to respondent (Appeal of Bussfeld, 34 Ed Dept Rep 383, Decision No. 13,352).

Petitioner's claim that respondent suspended his son without providing him written notice of his right to an informal conference has merit. Education Law "3214(3)(b) provides that, in the case of suspension for a period not to exceed five days, the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of the complaining witnesses." Notice of the right to request an informal conference is required under 8 NYCRR "100.2(l)(4) which provides:

(4) Parental notice of student suspensions. Where a student is suspended from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student has been suspended from school. Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension at the last known address or addresses of the parents or persons in parental relation. Where possible, notification shall also be provided by telephone if the school has been provided with a telephone number(s) for the purpose of contacting parents or persons in parental relation. Such notice shall provide a description of the incident(s) which resulted in the suspension and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b). Such notice and informal conference shall be in the dominant language or mode of communication used by the parents or persons in parental relation to the suspended pupil.

The written notice provided to petitioner on May 14, 1999 advised petitioner and his wife of their son's five-day suspension without informing them of their right to an opportunity for an informal conference with the principal at which they could ask questions of complaining witnesses. Accordingly, respondent's suspension of petitioner's son in effect on May 14 until the May 19, 1999 hearing must be annulled and expunged from the student's record (Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Milano, 37 id. 472, Decision No. 13,908; Appeal of Pinckney, 37 id. 284, Decision No. 13,860).

Petitioner also appeals the additional suspension imposed as a result of the superintendent's hearing. Education Law "3214(3)(a)(1) authorizes a school district to suspend "a pupil who is insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others." The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Shelli, 37 Ed Dept Rep 725, Decision No. 13,968; Appeal of Osoris, 36 id. 330, Decision No. 13,739; Appeal of Homick, 34 id. 150, Decision No. 13,265). A hearing officer may draw reasonable inferences if the record supports the inference (Bd. of Educ. of Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133; Matter of Payne, 18 Ed Dept Rep 280, Decision No. 9,840).

The hearing notice stated that petitioner's son was charged with "Endangering the safety, health and welfare of other students and staff at Kenmore Middle School – making verbal statements about his hit list of students in building." In this case, petitioner's son testified that he used the term "kick list" at school to various students. And, the hearing officer could have reasonably drawn the inference that the student also recently used the term "hit list." The following exchange during direct examination by petitioner of his son referred to a recent warning by petitioner not to use the term:

Petitioner: (son's name), since I talked to you about, let's say 28 April or maybe 21 April, about this Columbine problem, and knowing you as I do, as your Father, that you could, your military tendencies could get you into trouble in a civilian society, have you threatened to use a "hit list," or endanger another student verbally in that ….

Petitioner's son: Since you spoke to me, no?

The response by petitioner's son limited his denial of the use of the term "hit list" to the period of time after April 21 or 28, allowing an inference that he used the term prior to that time.

The principal testified that the nine students who complained to her "were very upset, you could tell some of them had been crying, some of them were very distraught because… (petitioner's son) told them they were on a 'hit list'…. I was very concerned that there was a 'hit list' and that students were in danger." The principal testified further that petitioner told her that he warned his son recently not to use the term "hit list."

The social studies teacher testified that the student who complained to him was "serious" and "concerned" and mentioned three other girls who had also been told they were on petitioner's "hit list." He testified that he believed that petitioner's son may have made such a statement based on remarks made by the student during a social studies class on the topic of Nazi Germany and the Holocaust.

It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts on the record (Appeal of Bowen, 35 Ed Dept Rep 136, Decision No. 13,491; Appeal of Kittell, 31 id. 419, Decision No. 12,686). 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 Hamet, 36 Ed Dept Rep 174, Decision No. 13,692). Accordingly, I find that respondent's determination is supported by competent and substantial evidence and there is no basis to overturn it.

Petitioner's request that the superintendent, hearing officer and principal be charged with professional misconduct must be denied for failure to join them as necessary parties. The rights of these individuals would be adversely affected by a determination in petitioner's favor regarding the relief he seeks against them. Accordingly, they are necessary parties to this appeal and should have been named and served with a copy of the notice and petition. Inasmuch as petitioner failed to join them as parties, those claims directed against them must be dismissed (Appeal of Andela, 38 Ed Dept Rep 249, Decision No. 14,026; Appeal of Basil, 37 id. 568, Decision No. 13,929).

Moreover, even if petitioner properly joined them as parties, these claims must be dismissed because the determination of whether to take disciplinary action against district employees is within the discretion of the board of education so long as it has a reasonable basis (Appeal of Rivenburg, 35 Ed Dept Rep 27, Decision No. 13,451; Appeal of Allert, 32 id. 538, Decision No. 12,909; Appeal of Mitzner, 32 id. 15, Decision No. 12,742. Upon my review of the record, I find respondent's assessment that disciplinary action against employees was not warranted in this matter reasonable.

I have considered petitioner's remaining claims and find them without merit.


IT IS ORDERED that respondent's suspension of petitioner's son from May 14 through May 19, 1999 be annulled and expunged from his record.