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Decision No. 14,687

Appeal of M.S., SR., on behalf of M.S., JR., from action of the Board of Education of the City School District of the City of Niagara Falls regarding student discipline.


Appeal of M.D., on behalf of R.D., from action of the Board of Education of the City School District of the City of Niagara Falls regarding student discipline.

Decision No. 14,687

(February 22, 2002)

Gold and Gold, attorneys for petitioners, Michael A. Gold, Esq., of counsel


James C. Roscetti, Esq., attorney for respondent


MILLS, Commissioner.--In separate appeals, petitioners challenge disciplinary action taken against their sons by the Board of Education of the City School District of the City of Niagara Falls ("respondent"). Because the appeals contain common issues of law and fact, they are consolidated for decision. The appeals must be sustained.

At some point during the 2000-2001 school year, school officials in respondent"s district discovered the existence of a web site, known as the "Niagara Underground," on its server. According to the district, the site offered laptop parts for sale that belonged to respondent and had links to racist web sites. Based on this discovery, disciplinary charges were brought against a number of district students, including M.S. and R.D.

By letters dated December 21, 2000, petitioners were notified that their sons had been suspended from school on December 20, 2000 for "Disorderly Conduct" for violating the "Acceptable Use Agreement" governing the students" district-issued laptop computers. By separate letters dated December 22, 2000, petitioners were notified of a January 4, 2001 hearing date. The letters identically charged that each student was:

found to be involved as a member in a web site called the "Niagara Underground." This web site contained a page that offered laptop parts (owned by [Niagara Falls Board of Education]) for sale. It also contains links to racist and offensive web sites and material. This is in violation of the Niagara Falls Board of Education"s Acceptable Use Policy.

M.S. disciplinary hearing

The bulk of the district"s testimony at the M.S. disciplinary hearing came from Manning Fogan, a Principal at Niagara Falls High School. Mr. Fogan testified that M.S. was "found" to be "involved as a member" of the Niagara Underground web site, which "contained a page that offered laptop parts owned by the Niagara Falls Board of [Education] for sale." The only proof offered by the district that the parts were owned by respondent was Mr. Fogan"s assertion that, according to "the guys in information services," the parts listed on the web site were "very specific to" the district"s laptops. Mr. Fogan also explained how the district had identified the students involved in the web site:

We found out about a group of students who were involved in this, it it (sic) came to our attention that on the web site there were names, either nicknames or first names and that"s how we were able to figure out the kids who were involved in the web site"

M.S. also testified at the hearing and admitted that, at the request of another student, he had designed the web page for the site, but denied any involvement in choosing the host site, which allegedly contained racist material. He also denied any involvement in selling laptop parts belonging to the district and, contrary to Mr. Fogan"s suggestion that the parts were unique to the district"s laptops, asserted that the parts were readily available for purchase on IBM"s web site.

R.D. disciplinary hearing

Mr. Fogan was also the principal witness in the R.D. disciplinary proceeding. In a similarly conclusory fashion, Mr. Fogan testified that R.D. was "discovered to be a member" of the Niagara Underground web site, which offered for sale laptop parts owned by respondent and contained links to "a racist and offensive web site." The information introduced concerning the "racist" web site was that it contained a swastika. Mr. Fogan similarly testified that the district had been able to identify the students involved "through first names, nickname or full name" that appeared on the web site. The hearing officer took no formal testimony from any other witness, nor were any exhibits introduced. However, the record reflects a discussion between R.D., his parents, the hearing officer, Mr. Fogan and Gerald Orfano, Dean of Niagara Falls High School, during which R.D. admitted limited involvement with the Niagara Underground web site, stating, for example, that he "gave his name" for the web site, but "didn"t actually do anything."

The district did not introduce a copy of its "Acceptable Use" policy or copies of the material from the Niagara Underground web site at either hearing. Nor did it introduce proof that either student had used a district-issued laptop in connection with the web site.

By separate letters dated January 12, 2001, respondent"s superintendent notified petitioners that their sons would be placed on home teaching through February 2, 2001 and would lose laptop privileges for the remainder of the school year. Although the superintendent did not explicitly state in either letter that he had found the students guilty of the charges, he did advise that they had been suspended for their "involvement in a web site that offered laptop parts for sale that were owned by the Niagara Falls Board of Education and contained links to racist and offensive web sites and materials," which constituted "an unacceptable use of the laptop computer" issued by the district. Petitioners, both represented by the same counsel, appealed the superintendent"s determination to respondent. In the course of respondent"s review of the superintendent"s hearings, the hearing officer, who also serves as an Assistant School District Attorney, provided respondent with copies of, among other things, pages from the Niagara Underground web site. By letters dated February 23, 2001 and January 26, 2001 counsel for petitioners was informed that respondent had upheld the superintendent"s determination in the M.S. and R.D. hearings, respectively. These appeals ensued.

Petitioners contend that the hearing officer"s determination was not supported by substantial evidence, that respondent improperly considered evidence that was not part of the record, and that both the hearing officer and respondent"s superintendent improperly participated in discussions with respondent while it considered petitioners" appeals. Petitioner M.D. also alleges that the district wrongfully withheld exculpatory statements from two other students that R.D. was not involved in the web site. For relief, petitioners request that the hearing officer"s determination be reversed and their sons" records be expunged.

Respondent contends that the petitions do not set forth a clear and concise statement of petitioners" claims, that the petitions are moot, that the hearing officer"s determination in both appeals is supported by competent and substantial evidence, that the web site pages were properly reviewed by respondent because they were part of the hearing record and that neither the superintendent nor the hearing officer participated in respondent"s deliberation of petitioners" appeals.

Preliminarily, I find no merit to respondent"s claim that the appeal is moot. The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of N.B., 40 Ed Dept Rep ____, Decision No. 14,542; Appeal of N.C., 40 id. ___, Decision No. 14,522). Petitioners challenge the hearing officer"s determinations of guilt and seek expungement of their sons" disciplinary records. Because the disciplinary action remains part of the students" records, I do not find the appeals moot and decline to dismiss them on that basis.

Nor do I find any merit to respondent"s claim that the petitions do not contain a clear and concise statement of petitioners" claims. Pursuant to "275.10 of the Commissioner's regulations, the petition must contain a clear and concise statement of petitioner's claims showing that the petitioner is entitled to relief. "Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of" (8 NYCRR "275.10). I find both petitions sufficient to apprise respondent of petitioners" claims and therefore decline to dismiss the appeals on this basis.

The appeals must be sustained. 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 Bd. of Educ., Monticello CSD v. Commissioner of Education, et al., 91 NY2d 133; Appeal of James L., 39 Ed Dept Rep 482, Decision No. 14,288; Appeal of Cynthia and Robert W., 37 id. 437, Decision No. 13,899). In both hearings, the record was insufficient to establish petitioners" guilt. Contrary to respondent"s assertion, it was not enough for the district to establish merely that the students were "involved" in the Niagara Underground web site. Rather, the district was required to establish that such conduct violated the district"s "Acceptable Use" policy governing district-issued laptops, as charged in the notice of discipline. The district failed to introduce a copy of its "Acceptable Use" policy or even identify the portion of the policy that the students had allegedly violated. Nor did the district introduce any proof that the students had used district-issued laptops in connection with their alleged involvement in the Niagara Underground. Accordingly, the record was devoid of proof to support a finding that the students had violated the district"s "Acceptable Use" policy.

In addition, there was insufficient proof to establish that the laptop parts offered for sale were stolen from respondent. The district"s proof consisted of little more than Mr. Fogan"s conclusory statement that the parts were owned by respondent. Mr. Fogan did not explain how the district reached this conclusion, other than to suggest during the M.S. hearing that the parts were "very specific" to the district"s laptops, a contention disputed by M.S., who asserted that laptop parts could be purchased directly from IBM"s web site. There is no evidence that the district actually examined the parts in question and determined that they belonged to the district. Accordingly, I find the proof adduced at both disciplinary hearings insufficient to sustain the charges.

I also find that respondent erred by considering evidence that was outside the record in determining petitioners" appeals. With regard to hearings on student suspensions, Education Law "3214(3)(c)(1) provides, in pertinent part:

A record of the hearing shall be maintained " The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent. The report of the hearing officer shall be advisory only, and the superintendent may accept all or any part thereof. An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it. [emphasis supplied]

The record reflects that the district did not introduce a copy of the material obtained from the Niagara Underground web site during either disciplinary hearing. Accordingly, this material was outside the hearing record and should not have been considered by respondent (see, Appeal of A.G., 41 Ed Dept Rep ___, Decision No. 14,681). I reject respondent"s assertion that the web site material was properly part of the record because Mr. Fogan allegedly testified from it during the hearing. The record does not reflect that either student was provided with a copy of this material during the hearing or advised that it would be considered by the hearing officer in determining the charges. Although the hearing officer is not required to adhere to the rules of evidence, the hearing must comport with the student's due process rights. While students are not entitled to the procedural protections of a criminal trial, they must be given a fair opportunity to tell their side of the story and rebut the evidence against them (Board of Education of Monticello Central School District v. Commissioner of Education, supra). The right to rebut evidence extends to documentary as well as testimonial evidence. Because there is no evidence that petitioners" sons" were given an opportunity to rebut this documentary evidence during the hearing, I find that it was not part of the record, and therefore, should not have been considered by respondent (Appeal of A.G., supra). For the same reason, it was improper for the hearing officer to consider this material in determining petitioners" guilt.

Finally, I must express my concern regarding the insufficiency of the proof upon which the hearing officer based her determinations of guilt and the informality with which she conducted the hearing. It is inappropriate for the hearing officer to base her determination on evidence gathered outside the hearing. Although the hearing officer is not required to adhere to the strict rules of evidence, a student must, at a minimum, be given an opportunity to examine and challenge any documentary evidence upon which the district is relying. Accordingly, all documentary evidence that the district intends to submit to the hearing officer for consideration should be clearly identified during the hearing and copies thereof provided to the student.

I urge respondent to take appropriate steps to ensure that future disciplinary proceedings are conducted in accordance with the principles set forth herein. In light of this disposition, I need not address the parties" remaining contentions.



IT IS ORDERED that respondent remove any reference to the instant disciplinary proceedings from petitioners" sons" records.