Decision No. 14,567

(April 27, 2001)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Saratoga ("respondent") to suspend her son from school. The appeal must be dismissed.

On April 5, 2000, A.E., then a seventh-grade middle school student, took the late bus home from school. On that trip, A.E and several other seventh-grade boys engaged in conduct directed at a seventh-grade girl, K.P. During the approximately 20-minute bus ride, the boys threw hot balls (a round hard candy) at K.P., one of the boys spit at her and someone put gum in her hair. A.E. admits that he licked hot balls and threw them at K.P., who was his seatmate on that trip. He also admits that he put a hot ball down her shirt, and, when she moved to stand in the aisle, he placed his foot on her buttocks and pushed her to the floor. He further admits that he grabbed her hair while she was on the floor, although he claims he did not pull her hair. K.P. later reported to district administrators that A.E. had twice placed hot balls down her shirt, both times reaching inside her shirt and touching her breasts.

On April 6, 2000, School Bus Discipline Officer Harry Groves, Assistant Principal Jill Bonacio and Principal Stuart Byrne interviewed a number of students who were either directly involved with the conduct directed at K.P. or who witnessed the conduct. Mr. Byrne met with petitioner that same day and suspended A.E. for 5 days pending a superintendent’s hearing. By letter dated April 7, 2000, Mr. Byrne advised petitioner that A.E. was charged with disorderly conduct, sexual harassment and endangering the safety of the students riding the bus. The hearing was held before a hearing officer designated by the superintendent on April 12, 13 and 25, 2000. A.E., K.P., several other students who were on the bus that day, the bus driver, the school nurse and the above-named administrators all testified at the hearing. The school nurse, who examined K.P. the day after the incident, testified that K.P. had a wound on her upper shoulder, a one-inch laceration about two inches above her breast and a one and one-half inch laceration about two inches above her nipple. The hearing officer, by decision dated April 25, 2000, found A.E. guilty of the charges and recommended his suspension for the remainder of the school year and for the first semester of the 2000-2001 school year. The superintendent accepted the hearing officer’s recommendations. Petitioner appealed to respondent and by letter dated July 13, 2000, respondent notified petitioner that it had decided to uphold the superintendent’s decision. This appeal ensued. Petitioner’s request for interim relief was denied on August 22, 2000.

Petitioner contends that A.E. was denied due process because respondent failed to provide adequate notice of the charges against him and that respondent failed to allow A.E.’s attorney to cross-examine K.P. during the hearing. Petitioner further contends that the hearing officer was biased and inappropriately relied on respondent’s counsel to make rulings. Petitioner accuses respondent’s attorney of violating the confidentiality of the hearing by revealing information to K.P.’s attorney. Petitioner argues that discrepancies in testimony given by K.P. and other witnesses indicate that K.P. was not truthful in her accusations and that the punishment imposed upon A.E. was excessive. Petitioner requests that the suspension be overturned.

Respondent argues that A.E. received all necessary due process, that petitioner was provided with full notice of the charges against A.E. and that A.E.’s attorney was allowed to question K.P. at length during the hearing. Respondent denies that its attorney violated the confidentiality of the hearing or that the hearing officer inappropriately relied on her to make rulings. Respondent states that, despite some minor inconsistencies in the witness testimonies, the weight of the evidence and testimony shows that A.E. committed the acts he was accused of and that the punishment imposed is appropriate.

Initially, I will address the procedural issues raised by petitioner. Petitioner claims that the written notice provided to her was deficient because it lists general charges without sufficiently specific information to enable A.E. to mount a defense. The Court of Appeals has stated that the charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing." (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133). "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." (Id.) Significantly, the Court of Appeals recognized in Monticello that although student disciplinary hearings are serious and adversarial in nature, students are not entitled to the procedural protections of a criminal trial (Board of Education of Monticello Central School District v. Commissioner of Education, supra).

Here, the record reflects that Principal Byrne's letter, dated April 7, 2000, charged A.E. with disorderly conduct, sexual harassment and "endangering the safety of the students riding the bus." Although the notice did not state the date the acts allegedly occurred, the notice was sent a mere two days after the alleged incident and referenced the fact that the charges involved conduct on the bus. Petitioner has failed to establish that the notice did not adequately apprise A.E. that his conduct on the bus on April 5 would be considered during the hearing. Moreover, any uncertainty regarding the nature of the charges against A.E. was clarified at the hearing itself. Further, there is no evidence that A.E. did not have an opportunity to defend himself over the three days of hearings, which were held over two weeks. I also note that A.E. appeared on the scheduled dates of the hearing, did not request an adjournment in order to secure additional time to prepare a defense and his attorney actively questioned all of the witnesses. Under such circumstances, I find the notice sufficient. I do, however, remind respondent that in the future, notice of a superintendent's hearing should include, at the very least, the date of the incident(s) and a brief description of the conduct that is alleged to have occurred (Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241).

I also do not find any merit to petitioner’s complaint that A.E.’s defense was hampered because A.E.’s attorney was not allowed to cross-examine K.P. The record indicates that K.P. appeared on the first day of the hearing and A.E.’s attorney questioned her about the incident. On the second and third days of the hearing, A.E.’s attorney asked for K.P. to be recalled to the hearing so he could question her further. Petitioner argues that A.E.’s attorney made a strategic decision to reserve some questions for K.P. until after the testimony of several other witnesses and was then denied an opportunity to subsequently cross-examine her. However, at that point, K.P. had withdrawn from respondent’s schools, her parents did not want her to appear again and the hearing officer refused to issue a subpoena to compel her appearance. Education Law "3214 provides that a student is entitled to a fair hearing, upon reasonable notice, at which the student, or his attorney, has the right to question witnesses and to present witnesses on his own behalf. On the record before me, I find that A.E. had those opportunities.

Petitioner also accuses respondent’s counsel of breaching the confidentiality of the hearing by giving information to K.P.’s attorney. After the hearing officer refused the request to issue a subpoena to compel K.P.'s appearance, A.E.’s attorney served K.P.’s parents with his own subpoena. Respondent’s attorney apparently communicated the information about the hearing officer’s decision to K.P.’s attorney. As noted above, A.E. is not entitled to the protections of a criminal trial. Furthermore, there is no evidence that respondent’s attorney revealed any confidential information regarding A.E. to K.P.’s attorney. Therefore, I find no merit this claim.

Nor do I find any evidence of bias on the part of the hearing officer. The transcript of the hearing shows that the hearing officer listened to both sides before making rulings. The mere fact that he agreed with respondent’s attorney on some issues does not prove bias.

Turning to the merits of the appeal, a decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student actually participated in the objectionable conduct (Board of Education of Monticello Central School District v. Commissioner of Education, supra; Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep ___, Decision No. 14,464, aff'd Sup Ct Albany Co. [Keegan, J.] November 3, 2000; Appeal of B.W., 40 id. __, Decision No. 14,516). Furthermore, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of B.W., supra; Appeal of Christopher and Gigi B., 39 Ed Dept Rep 642, Decision No. 14,338; Appeal of Alexander, 36 id. 160, Decision No. 13,689). 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 B.W., supra; Appeal of Christopher and Gigi B., supra; Appeal of Alexander, supra).

The decision of the hearing officer notes that he credited K.P.'s account of A.E.'s actions despite minor inconsistencies in her testimony. It is well settled that the Commissioner will not substitute his judgment on witness credibility unless the findings are not supported by facts in the record (Appeal of a Student with a Disability, 40 Ed Dept Rep ___, Decision No. 14,426; Appeal of Bowen, 35 id. 136, Decision No. 13,491; Appeal of Kittell, 31 id. 419, Decision No. 12,686). Based on the record before me, I find no reason to substitute my judgment for that of the hearing officer as to K.P.’s credibility. Furthermore, A.E. admitted much of the conduct he was charged with, including putting at least one hot ball down K.P.'s shirt, pushing her with his foot, and acknowledged the possibility that his bracelet or fingernails inflicted the scratches on K.P.’s chest. On the record before me, I find that the decision to suspend A.E. was based on competent and substantial evidence that he engaged in the conduct charged.

Finally, A.E.’s disciplinary record includes, among other offenses, at least one other incident of aggressive behavior toward another female student. Further, based on A.E.'s demeanor during the hearing, the hearing officer was justifiably concerned that A.E. failed to grasp the seriousness of his misconduct. Under such circumstances, I do not find the penalty imposed on A.E. to be excessive.

THE APPEAL IS DISMISSED.

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